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THE

DECLARATION OF PARIS

1856

■ iHSs.*-' -■« i

R FRANCIS PIGGOTT

THE DECLARATION OF PARIS

1856

"LAW OF THE SEA" SERIES
OF HISTORICAL AND LEGAL WORKS

VoL I. Documentary Histoty of the Armed Neutralities,
1780-1800.

Vols. II., III. Documentary History of the French Wars,
1793-1815.
A. — 1793 to the Peace of Amiens.
B. — Peace of Amiens to 1815.

Vol. IV. The Declaration of Paris, 1856. A Study.
Documented.

Vols, v., VI. Principles governing the Relations of
Belligerent and Neutral.
A. — History as the Basis of the Law.
B. — The Law as derived from History.

THE DECLARATION
OF PARIS

1856

A STUDY

- DOCUMENTED -

Sir FRANCIS PIGGOTT

•'Law of the Sea " Series— Vol. IV

LONDON

UNIVERSJTY OF LONDON PRESS LTD.

1 8 WARWICK SQUARE, E.G. 4

1919

The time has come at last when all theories as to the manner
in which war ought to be waged are to be revised by the light
of experience of war as it is, in fact, waged ; those especially
which attempt to control the relations of the belligerents with
the neutral merchant. It is essential therefore that the veil
which for sixty years has surrounded the Declaration of Paris
should be withdrawn, and its story told from Hansard, some
few White Books, and documents preserved in the Public
Record Office.

The task of piecing together the scattered fragments has
been made easier by the able assistance and energetic collabora-
tion of Miss Sylvia Seeley.

In telling the story I have found the need of a moderating
influence, and Mr George A. B. Dewar, bringing an open mind
to the subject, has supplied it.

F. T. P.

14 OiiD Square, Lincoln's Inn

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TABLE OF CONTENTS

Part I.— HISTORICAL

1854
I

PAGB

The Dbolabations of the Neutrality of the Scandinavian

Powers ......... 5

The General Position, 1853-54 19

A. The Other Neutrals 19

B. The Relations between England and France ... 22

C. Political Opinion in England ..... 24

III

Discussions between England and France as to the Prin-
ciples OF Maritime Law to be adopted during
the War 27

IV
The Riga Despatch ........ 40

The Negotiations between England and France prior to

the Declaration of War 56

The Declarations to the Neutrals ..... 73

The Instructions to the Fleets ...... 79

The Answer of the United States : First Marcy Note . 80

VII

Mr Phillimore's Motion, 14th July 1854 .... 82

▼ii

viii The Declaration of Paris

1855
I

PAOE

The Debates in Parliament — Trading with the Enemy —

Land Transport through Prussia ... 87

II
The Political Economists' Theory of War ... 93

III
Licences to Trade with the Enemy 102

IV
The Facts as described by Contemporary Writers . .110

1856

The Congress of Paris and the Treaty of Peace . . 115

II
The Declaration of the Congress 117

III
The Debate in the House of Lords . . . .124

The Powers which Adhered to the Declaration . .136
Indirect Adherences to the Declaration . . . 140

A. By Treaty with Italy 140

B. By Treaty with France 141

V
The Refusal of the United States to Adhere . . 142

Table of Contents ix

1860-1862
I

PAQK

The Report of the Horsfall Commission on Merchant

Shipping, 1860 160

Questions and Answers in Parliament, 1861 . . .153

III
The United States and the Declaration of Paris during

THE Civil War, 1861 154

IV
The Debate of 1862 161

Part II.— COMMENTARY

The Meaning and Effect of the Declaration of Paris . 173

The Nature of a Declaration : The Treaty-making

Prerogative 174

The Constitutional Aspect of the Principles of the

Declaration examined . . . . . .179

III
The Form in which the Principles are Stated . .183

The Effect of War on Treaties, and especially on this

Declaration ........ 189

The Effective Operation of the Declaration that " Free

Ships make Free Goods " . . . .196

X The Declaration of Paris

^ PAOB

The Conditions attached to Adherence to the Declara-
tion : Indivisibiiity of the Principles . .197

VII
The Courts and the Declaration

VIII
The Declaration and the Law of Nations

Conclusion

. 202

. 206
. 214

Part III.— DOCUMENTS

Chronological Table of Chief Historical Events con-
nected WITH the Russian War, 1854-1856 . .221

1. Declarations of the Neutrality of the Scandinavian

Powers 223

A. Sweden to the Belligerents ..... 223
Lord Clarendon's Reply ..... 225

B. Denmark to the Belligerents ..... 225
Lord Clarendon's Reply ..... 227

C. Denmark to the United States (and other Neutrals) 228

D. Sweden to the United States (and other Neutrals) . 229

E. United States Secretary of State's Reply to Denmark

and Sweden ....... 230

2. The Riga Despatch 230

3. Instructions of the British and French Governments

FOR THE Mutual Protection of Subjects and
Commerce ....... 231

E. (1) Circular to British Diplomatic and Consular

Agents ........ 231

E. (2) Instructions to British Naval Of&cers . . 233

F. (1) Circiilar to French Diplomatic and Consular

Agents 234

F. (2) Instructions to French Naval Officers . . 235

Table of Contents

PAOI

4. Correspondence between Messrs Martin, Levin &

Adler and the Board of Trade . . . 237

5. Declarations to the Neutrals 240

A. Great Britain 240

B. France. (With Report of M. Drouyn de Lhuys) . 241

6. Creation of Prize Courts 243

A. English 243

B. French 247

7. Circular Despatches announcing the Declaration to

THE Neutral Powers ..... 249

A. British 249

B, C. French 250, 251

8. United States Despatches relating to the Declaration

TO the Neutrals ......

9. Proclamations and Orders in Council

10. Instructions to the Fleets

A. English

B. French

252

268

280
280
283

1 1 . Convention between Great Britain and France relative
TO Joint Captures, with Instructions to the

Fleets

•

. 289

12.

British Notifications of Blockades .... 298

13.

Correspondence relating to the Blockades . . 301

14.

Neutral Legislation as to Navigation during the War 305

Brazil 305

Bremen

305

Denmark

307

Haiti .

315

Hamburg

316

Hanover

318

Hawaiian Islands

320

Lubeck

320

Mecklenburg-Schwerin

321

Naples

322

Portugal

323

Spain

324

Sweden

325

Xll

The Declaration of Paris

16. Extracts from President Pierce's Message to Con-
gress, 1854 329

16. Conventions between the United States and other

Countries as to Neutrals . . .331

A. With Russia, 1854 331

B. With the Two Sicilies, 1855 332

C. With Peru, 1856 333

17. Protocols of the Congress of Paris, 1856 . . 335

18. French Promulgation of the Declaration of Paris . 346

19. Adherences to the Declaration of Paris . . . 347
Adherences to the Mediation Clause . . . 387

20. Indirect Adherences 388

A. Guatemala ........ 388

B. Honduras 388

C. Mexico 389

D. Peru 389

E. Salvador 391

F. Sandwich Islands 392

G. Siam 392

21. United States : Second Marcy Note, 1856 . . . 393

22. United States Proposals for a Convention, 1857 . 404

23. Report of the Select Committee on Merchant Shipping,

1860. Extract relating to Belligerent Rights

at Sea 408

24. The American Civil War and the Declaration of Paris :

Correspondence . . . . . .411

25. Observance of the Declaration ..... 435
British Order in Council : Application of Declaration

OF Paris in the Event of War by France and

Great Britain against China, 1860 . . 435

26. Observance of Principles of the Declaration . 437

A. Proclamation by the United States . . 437

B. Proclamation by Spain ..... 439

Addendum to Correspondence relating to the Blockades 440

Index

442

PART I

HISTORICAL

The immediate cause of the war which broke out in 1853 was
a dispute which had arisen between France and Russia upon the
custody of the Holy Places in Jerusalem. The real cause was the
intention of Russia to hasten the dismemberment of the Turkish
Empire. Nicholas, in a memorable conversation, actually suggested
to the British ambassador at St Petersburg that England should
receive Egypt and Crete as her own portion of the spoil. This con-
versation, which took place in January 1853, was at once reported
to the British Government. It undoubtedly prepared the way for
future trouble. ... It had the effect of rendering the British
Ministry suspicious of his intentions, at a moment when a good under-
standing with this country was of the first importance to the Czar
of Russia. . . . Almost at the same moment he affronted France
by declining to call Napoleon " Monsieur mon frere." . . . Nicholas
had the singular indiscretion to render a British Ministry suspicious
of him, and a French Emperor angry with him, in the same month.
Napoleon could easUy avenge the affront. . . . The Greek and
Latin Churches both claimed the right of protecting the Holy Places
of Palestine. Both appealed to a Mahometan arrangement in support
of their claim : each declined to admit the pretensions of the other.
The Latin Church in Palestine was under the protection of France ;
the Greek Church was under the protection of Russia ; and France
and Russia had constantly supported, one against the other, these
rival claims. In the beginning of 1853 France renewed the contro-
versy. She even threatened to settle the question by force. The
man whom Nicholas would not call " mon frere " was stirring a contro-
versy thick with trouble for the Czar of Russia. . . . The dispute
about the Holy Places was soon superseded by a general demand of
Russia for the adequate protection of the Christian subjects of the
Porte. In the summer of 1853 the demand took the shape of an
ultimatum ; and when the Turkish Ministers, declined to comply
with the Russian demand, a Russian army crossed the Pruth and
occupied the Principalities. In six months a miserable quarrel
about the custody of the Holy Places had assumed dimensions which
were clearly threatening war. At the advice of England the Porte
abstained from treating the occupation of the Principalities as an act
of war ; and diplomacy consequently secured an interval for arrang-
ing peace. The Austrian Govermnent framed a note, which is known
as the Vienna Note, as a basis of a settlement. England and the
neutral Powers assented to the note ; Russia accepted it ; and it was
then presented to the Porte. But Turkey, with the obstinacy which
has always characterised its statesmen, declined to accept it. War
might even then have been prevented if the British Government had
boldly insisted on its acceptance, and had told Turkey that if she
modified the conditions she need not count on England's assistance.
One of the leading members of Lord Aberdeen's Ministry wished to
do this, and declared to the last hour of his life that this covirse should

have been taken. But the course was not taken. Turkey was
permitted, or, according to Baron Stockmar, encouraged to modify
the Vienna Note ; the modifications were rejected by Russia ; and
the Porte, on the 26th of September, deHvered an ultimatum, and on
the 4th of October 1853 declared war. These events excited a very
widespread indignation in this country. The people, indeed, were
only imperfectly acquainted with the causes which had produced
the quarrel ; many of them were unaware that the complication had
been originally introduced by the act of France ; others of them
failed to reflect that the refusal of the Porte to accept a note which
the four Great Powers — of which England was one — had agreed
upon was the immediate cause of hostilities. Those who were better
informed thought that the note was a mistake, and that the Turk
had exercised a wise discretion in rejecting it ; while the whole nation
instinctively felt that Russia throughout the negotiations had acted
with unnecessary harshness. In October 1853, therefore, the country
was almost unanimously in favour of supporting the Turk. The
events of the next few weeks turned this feeling into enthusiasm.
The Turkish army, under Omar Pasha, proved its mettle by winning
one or two victories over the Russian troops. The Turkish fleet at
Sinope was suddenly attacked and destroyed. Its destruction was,
undoubtedly, an act of war : it was distorted into an act of treachery ;
a rupture between England and Russia became thenceforward inevit-
able. . . . — (Spencer Walpole, Foreign Relations^ ch. iii. pp. 99-102.)

So early as 28th of January 1853 the French Emperor perceived
that his measures had effectually roused the Czar's hostility to the
Sultan, and he instantly proposed to England that the two Powers
should act together in extinguishing the flames which he himself
had just kindled, and so endeavour to come to a joint understanding,
with a view to resist the ambition of Russia. Knowing beforehand
what the poUcy of England was, he all at once adopted, and proposed
it to our Government in the very terms always used by English states-
men.— (Kinglake, History of the Crimean War, i. p. 343.)

La Russie, souveraine absolue de la Mer Noir, n'ayant qu'^
etendre la main pour toucher le Bosphore, pla9ait la Mediterranee
sous la menace des flottes de Sebastopol ; du fond de ses ports in-
accessibles, elle atteignait tous les empires et tons les royaumes.

Les quatre grandes puissances europeennes s'unirent afin d'em-
pecher une guerre qui semblait imminente, et dans le but, tout en
sauvegardant I'amour propre de la Russie de sauvegarder aussi I'inde-
pendance de la Turquie.

Toutefois la France et I'Angleterre devant le developpement
de I'aggression Russe tinrent leurs escadres h> portee de secourir efi&-
cacement le Sultan.

Le sort est jete : les dernieres croyances de paix sont evanouies,
les relations diplomatiques de la France et de I'Angleterre ont cesse
avec la Russie. Les declarations de guerres sont echangees, on se
prepare a combattre. — (Bazancourt, U Expedition de Crimee, Intro-
duction, xxvi, and t. i. ch. i.)

i854

The Declarations of the Neutrality of the Scandinavian

Powers.^

Early in January 1854, the spread of the war begun between
Turkey and Russia in the previous October appeared imminent.
Lord Palmerston resigned from the Aberdeen Administration
in December 1853, because he thought the Government's poHcy
towards Russia was not firm enough. The British fleet was
ordered to the Black Sea, and a few days later he resumed
office. The coming of the Western nations to the assistance of
the Porte then seemed certain ; and the neutrals began to take
steps for fostering the commerce which follows in the train
of war. The neutrals were the Scandinavian Powers, their
people long-established traders in material essential to naval
warfare ; the steps were those assertions of rights which had
become a tradition among them. The spell of peace which had
blessed the nations for forty years was about to be broken ;
the supply of materials was fully equal to the heavy demands
of the pending war ; the trade prospects were good ; there
would certainly be the traditional difficulties in getting cargoes
safe to belligerent ports. Turkey's allies were those two
countries who in their great wars had wrangled over the rights
of neutrals almost as strenuously as they had fought ; divided
counsels on such vexed questions were more than probable.
There were rumours, too, that a change had been gradually
coming over certain sections of British public opinion ; prompt
action was therefore advisable. If the rumours were true,

* This chapter is based ahnost entirely on despatches preserved in the
Public Record Office.

These despatches, as well as those referred to in other chapters, are to
be found in the official volumes as tinder : —

Sweden : F.O. 73 ; Nos. 254, 259, 260, 261.
Denmark : F.O. 22 ; Nos. 205, 207, 208.
Prussia : F.O. 64 ; Nos. 359, 364, 367, 368, 369.
France : F.O. 27 ; Nos. 996, 997, 1005-1012.
B

6 The Declaration of Paris

even premature action was not likely to be resented, more
especially as the advocates of the new ideas were in power.
Moreover, although negotiations were still going on, although
the scales which held peace and war had not yet dipped,
Russia was taking steps to strengthen her position. The
occasion seemed specially favourable for a forward policy.

On 2nd January 1854, Sweden and Denmark presented
identical despatches containing premature declarations of
neutrality ^ which, in plain language, were polite but firm intima-
tions to Britain, France, and Russia of what they might expect
from these neutrals in the event of war. It was an ultimatum
with the familiar burden, " respect for the neutral flag." The
documents are true to the tradition of the Armed Neutralities,
of which these two countries had been such prominent members.
They were not couched in the old crude terms. There was no
appeal to the applause of all Europe. A more sober diplomacy
had intervened : but the old point, that the neutral claim was
a *' right," was expressed in clear and unmistakeable language.
The steadfast adherence to "a strict neutrality founded in
good faith, impartiality, and an equal respect for the rights of
all the Powers," would impose on the Kings of Sweden and
Denmark certain obligations, and assure to them certain ad-
vantages. The obligations were many — ^to abstain from parti-
cipation, direct or indirect ; to admit to their ports the war-
ships and merchantmen of the belligerents, with certain re-
strictions ; to refuse admittance to privateers ; to accord to
belligerent vessels facilities for the supply of stores, not contra-
band of war ; to exclude prizes from their ports except in cases
of distress. The terms in which these obligations were defined
would not, on the face of them, cause any discussion. The
time, indeed, appeared specially opportune for a strong line as
to privateers. The " advantages " were comprised in a single
sentence — " To enjoy " in their commercial relations with the
countries at war " all security and all facilities " for their
" vessels as well as for their cargoes, with the obligation at all
times for such vessels to conform to the regulations generally
established and recognised for special cases of declared and effec-
tive blockade." There was, however, a touch of the old Armed
Neutrality spirit in the concluding paragraph of the declarations :
" Such are the general principles of the neutrality adopted by
His Majesty the King ... in the event of war breaking out in
Europe. His Majesty the King flatters himself that they will
be acknowledged as in conformity with the Law of Nations."

^ Document No. 1.

Declarations of Neutrality of Scandinavian Powers 7

Rumours of concerted action between Sweden and Denmark
as neutrals in the event of war had reached London in the
autumn of 1853, and Mr Grey, British Minister at Stockholm,
was instructed on the 12th November to ascertain what
arrangements had already been made. The King decMned to
give Mr Grey the required information ; but he informed him
that it was his intention to make a declaration of policy as
soon as a communication had been received from Copenhagen.
M. Lobstein, the French Minister, had, however, received im-
portant intelligence from the King, which he communicated to
Mr Grey. There were to be two chief points in the declaration
of neutrality : (1) a specification of ports to be closed to the
belligerents ; and (2) " que le pavilion neutre couvre la mar-
chandise." With regard to the second point, it had been
proposed by Sweden to Denmark, but Mr Grey adds : " I have
reason to believe that there is not the same unanimity upon
the subject. The King in his conversation with M. Lobstein
told him that he took it for granted Russia would recognise
the principle laid down in it, but I do not hear that he made
any allusion to England." The following extract was enclosed
from the Svenska Tidningen of the 18th November : —

Russia is preparing for a European War, but we pre-
pare for a neutrality in keeping with our rank and advan-
tageous position — not one which may be trampled upon,
or the honour of which may be impaired by anyone making
use of our peaceable coast for their benefit.

On the 19th December Mr Greyreported that Baron Stjerneld,
the Swedish Minister of Foreign Affairs, had asked him if he
knew the views of the British Government with regard to the
neutral flag, dwelling on the injustice of refusing to admit that
the flag protects the merchandise. Mr Grey thought that doubt
as to the course the British Government would take had caused
great distrust of England, and was the reason why he could
obtain no information as to the forthcoming declaration of
neutrality. The French Minister had told him that the matter
of the declaration was entirely agreed upon between Sweden
and Denmark. In the same despatch Mr Grey informed Lord
Clarendon of a statement made to him by Baron Stjerneld,
that " if England refused to admit the principle that the
neutral flag protects the merchandise, before six months were
over she would have a war with the United States." This state-
ment might have been based on inferences drawn from the
history of the early years of the century ; it might also have
been based on information of actual negotiations on the subject

8 The Declaration of Paris

between Washington and Copenhagen. Mr Grey evidently had
suspicions that such negotiations were in progress, and they were
confirmed. He wrote on the 11th February 1854, that from
conversations he had been led to believe that " the Swedish
Government might endeavour to come to some understanding
with the United States, in case of difficulties arising between
Sweden and England, upon the question of the neutral flag."

The declarations of neutrality had, in fact, been notified
to the United States by Denmark on the 20th January,^ and
by Sweden on the 28th, ^ as also to the other neutral Powers.
The reason for this action was explained in the Danish Note
to be that the King, having nothing more at heart than to
maintain and cement the relations of friendship and under-
standing which so happily reigned between him and all the
Governments of Europe, regarded it "as a duty not to leave
the allied and friendly Powers in ignorance of the line of policy "
which he proposed to follow in the possible contingency of a
maritime war. The body of the documents reproduced the
Notes which had been sent to the belligerents.

The American Secretary of State replied in both cases, on
the 14th February,^ that the views expressed by the two Govern-
ments were regarded by the President " with all the interest
which the occasion demands."

Mr Grey also wrote on the 11th February that he had been
informed " that Sweden could not count upon the support of
America upon this question, and the sympathies of the latter
were certainly on the side of England in case of a war with
Russia," an intimation which Baron Stjerneld was said to
have received with some disappointment. This information
was the more important, as our Minister understood that the
American Charge d' Affaires had proposed on his own motion
" that it might be advisable to send a small squadron to the
Baltic in the spring, in the event of a war, for the protection
of American commerce."

The replies received from the other Powers, especially those
from Prussia and Austria, were reported by Mr Grey to be
" entirely satisfactory."

Even more interesting information as to the attitude of
the United States in the event of war came into the possession
of the Government in February. The Czar had been endeavour-
ing to obtain its consent to the issue of Russian letters of marque
to United States citizens. The information had been received
by the French Government, and was immediately reported to

^ Docvunent No. 1 C. ' Document No. ID. • Docximent No. 1 E.

Declarations of Neutrality of Scandinavian Powers 9

London. M. Drouyn de Lhuys intended to address the United
States, saying that the old cordial relations which had existed
between the two countries assured him that the proposal would
not be countenanced. Lord Cowley was instructed to inform
the French Minister of the British Government's sympathetic
concurrence with the despatch.

Reports tend to show that public opinion in the United
States was entirely favourable to the allies,^ but this question
of serving in Russian privateers presented difficulties which
stood in the way of its effective prohibition. On the 22nd
March, Mr Mason, the United States Minister in Paris, in-
formed the Secretary of State that it was the point on which
most apprehension was felt.^ Lord Clarendon in the same
month discussed the question of privateering generally with Mr
Buchanan, the Minister in London, and the means of suppress-
ing it, speaking in highly complimentary terms of the treaties
which the United States had concluded with different nations
" stipulating that if one of the parties be neutral and the other
belligerent, the subjects of the neutral accepting commissions
as privateers to cruize against the other from the opposing
belligerent, shall be punished as pirates." Mr Buchanan added :^
" These ideas were doubtless suggested to his mind by the
apprehension felt here . . . that our sailors will be employed
to cruize against British commerce." The apprehension had
not subsided in April, when Mr Marcy referred to it in a despatch
to Mr Buchanan. Great Britain and France, he says, would
both most readily enter into conventions, but in spite of the
provision in existing treaties he did not think that the President
" would permit it to be inserted in any new one."

I have not come across any record of Americans having
accepted Russian letters of marque ; but it will not be un-
interesting to record Mr Mason's opinion on this question, and
the somewhat ingenious way in which he links it up with the
other question of the neutral flag.

* ConsxjIj Bancroft to Lord Clarendon.

Cincinnati, 5th Jvly 1855.

Public opinion in this city and State and the adjacent States, and
generally, and I might say universally, throughout the interior, where
the true American opinion is best to be gathered, is decidedly favourable
to Great Britain in respect to the Russian war. This favourable opinion
pervades all classes. I speak only of the interior, as it is my Consular
district, leaving those on the seaboard to report according to their in-
formation : but I can confidently affirm that the favourable feeling is
persistent throughout the whole of the United States. — {State Papers,
vol. xlvii. p. 360.)

» Document No. 8 C. * Docvunent No. 8 D.

10 The Declaration of Paris

The point on which most apprehension is felt, is the
engagement of citizens and vessels of the United States in
privateering under the Russian flag. I have urged that,
with every disposition to prevent such unlawful proceed-
ings by our people, the Government would find much
difficulty in enforcing its laws, unless sustained by public
opinion in the United States, and aided by the people, as
well as by officers of Government ; that with the vast
extent of sea-coast of the United States, the Government
could not have information of the preparation of vessels for
such enterprizes, in all cases, in time to suppress them, unless
the people felt an anxious desire that the laws should be
executed ; that if the allies adopted just and liberal measures
in regard to neutral rights, it would give profitable returns
to a safe business, and the entire mercantile community of
the United States would, from a sense of justice and of
national duty, as well as of their own interest, be found
ready to aid the Government in executing the laws ; that,
tempting as might be the offers to engage under the Russian
flag, to cruize against the commerce of the allies, the
danger of the service, the difficulty of realizing their prizes
by adjudication, and, above all, the actual profit of lawful
trade, under equitable and fair rules in respect to neutral
rights, and the public satisfaction at seeing just principles
established among nations, would probably prevent our
citizens, however bold and adventurous, from taking part
in the assaults on the commerce of the allies.

The second question discussed in the preliminary conversa-
tions related to the closing of the Baltic ports. It was reported
that Russia had demanded, in the event of war, that Swedish
ports should remain open to her but closed to England and
France. According to another report, Russia's demand was
that all the ports of Sweden should be closed to all belligerents,
including herself. According to yet another, that she should
have permission to carry her prizes into Carlscrona, and also
into Slito in case of necessity, the same favour not to be accorded
to England and France. These demands, whichever might
have been the true one, were refused. Sweden declared that
she would only close those ports the entrance to which she could
defend ; but the whole question, as Mr Grey's despatch of 30th
January pointed out,^ caused the King great anxiety lest Russia
should be tempted to support her demands by force.

* Mb Gbby to Lobd Clabendon.

Stockholm, Jan. 30, 1854.

After reporting that the arrival of the Rxissian courier, M. Daschkoff,
aroiised public curiosity in Stockholm, and that M. DaschkofE had read

Declarations of Neutrality of Scandinavian Powers 11

If Russia could persuade Sweden to close all her ports, she
would place the allies at a great disadvantage. If some of them
remained open it would enable the English and French ships
to refit, whereas if all were closed, Russia would suffer no in-
convenience, for she had her own Baltic ports to rely on. It
was worth a diplomatic discussion to press the assumption of
the international lawyers that the conditions of perfect neu-
trality require that neutral action must be equal on both sides :
what is granted to one belligerent must be granted to the other.
So the question was seriously raised by Russia that this condi-
tion of equal treatment would not be fulfilled if the allies derived
a benefit from the action of Sweden of which she need not avail
herself ! Therefore all the ports must be closed.

A question of the same nature arose on the other side. The
allies pressed for the closing of Copenhagen by Denmark. Her
Majesty's Government could not consent to be excluded from

to them a despatch to the King of Sweden, expressing the Emperor of
Russia's desire that Sweden should close all her ports to all belligerents
in the event of war, Mr Grey continues : "This demand was founded upon
the disadvantage imder which Riissia would lie if the English and French
fleets were allowed to enter the Swedish ports. The demand was made
in temperate and conciliating language, and the King of Sweden's answer
will be sent from here to-morrow. That answer is a decided negative,
and both Baron Stjemeld and Baron Manderstrom said to me that they
were convinced Her Majesty's Government would be satisfied with it.
The King had desired that the greatest reserve should be observed with
regard to the Corps Diplomatique at Stockholm, in order that it might
never be alleged that his answer to Russia had been dictated by foreign
influence, for though Sweden was a small Power, she was an independent
one. The Swedish Government were, however, bound not to lose sight
of the fact that whatever might be the issue of the war, if war there was,
Russia would always be the neighbour of Sweden, and that it was therefore
doubly important to the latter to avoid giving offence to the former. In
the present instance, it could not be denied that the attitude of Sweden
would, in the event of a war, be more advantageous for England aJid
France than for Russia, but they could not alter her geographical position,
and there was no hesitation on the part of the King, whose refusal to
comply with the demands of Russia was most decided.

" There appears to me to be a very general dread among the Swedes
of a sudden attack being made by Russia upon the Island of Gottland.
The Crown Prince has repeatedly expressed to me his alarm with regard
to the position of Gottland, and he- lately gave me to understand that
the Russian forces were being increased in Finland. I accordingly asked
Baron Manderstrom to-day if he had heard of reinforcements being sent
to that quarter. He answered, ' Not yet, but they are being sent,' and he,
I am bound to say, added that he had no apprehension as regards Gottland,
but that he feared the Russians might mean to take possession of a portion
of Finnmark, where there were ports which were never closed by ice. He
mentioned particularly the Waranger Fiord. Baron Manderstrom is,
however, the only person I have seen who has expressed this opinion,
and the fact of two regiments being now under orders to march for Gott-
land as soon as the weather admits, is a proof that the Government see
the necessity of being on their guard in that quarter."

12 The Declaration of Paris

those fortified ports in the Baltic which would be convenient
to the allies, while the only Danish port which they could not
use was to be left open for the use of our enemies. The ques-
tion was ultimately settled, and Copenhagen was closed as
far as necessary for the safety of the town and arsenal.

The Prussian ports were not closed because, not being
a naval power, Prussia had no means of enforcing her
neutrality.

To revert to the Scandinavian declarations, the interest of
which centres in the advantage to be assured by their neutrality
to the subjects of Sweden and Norway and Denmark. They
were " to enjoy all security and all facilities for vessels belonging
to them, as well as for their cargoes " : in other words, their
" free ships " were to make " free goods." On the receipt of
these declarations one of two courses might have been adopted,
either of which would have been appropriate to the occasion.
A curt reply might have been sent pointing out that as a state
of war did not in fact exist, neither did a state of neutrality,
and therefore the questions raised were premature ; or a
polite intimation might have been given that the declarations
had been received and note taken of their contents — an accusS
de reception, — leaving the consideration of them to a more
convenient hour.

But from the unpublished despatches it appears that the
British and French Governments had been informed in the
autumn of 1853 that Sweden and Denmark intended to make a
declaration, and that they were particularly anxious to ascer-
tain what attitude the allied Governments intended to adopt
towards the neutral flag. The allies were themselves anxious
to know what would be the attitude of the Scandinavian Powers,
and they had a very clear intimation that they intended to
press for the recognition of " free ships free goods."

Yet another curious point will presently appear. The Kjng
of Sweden seems to have been more ready to impart information
to the French than the English Minister. M. Lobstein, however,
at once passed on all that he had learnt to Mr Grey. And yet
the French Government appears to have been in the dark as
to Lord Clarendon's intentions. M. Drouyn de Lhuys wrote
twice to Count Walewski, the French Ambassador in London, on
the subject : on the 4th January, instructing him to ascertain
what those intentions were ; on the 12th more particularly to
try and discover what answer to Sweden and Denmark would
be given by Great Britain. He would give much, he said,
for Lord Clarendon's answer to be in the same terms as
his own.

Declarations of Neutrality of Scandinavian Powers 13

M. Drouyn de Lhuys to Count Walewski.

1854, Jan. 4.
Tachez de connattre k cette occasion, quelles sent les
dispositions actuelles du gouvernement anglais en ce qui
concerne les neutres. C'est une mati^re sur laquelle a
r^gne jusqu'ici entre I'Angleterre et nous une grande dif-
ference d'opinions. J'ai d'ailleurs sujet de penser, d'apr^s
un commencement de polemique que j'ai remarque dans
les journeaux anglais, que le commerce serait peu favorable
a I'application des anciennes doctrines du gouvernement
britannique dans toute leur rigueur. Je vous prie, tout
en evitant d'entamer une discussion pr^matur^e sur la
question de droit, de recueillir sur ce point des informations
aussi exactes que faire se pourra, et de chercher a savoir
notamment a quelles obligations le cabinet de Londres croit
le Danemarck et la Su^de tenus envers lui dans I'exercice
de la neutralite. Lord Clarendon n'ignore pas, sans doute,
que la Russie eprouve un vif mecontentement de I'attitude
de ces deux puissances, et en particulier de celle de la
Suede. C'est une raison de plus pour nous, ce me semble,
de croire a la sincerity des resolutions des cabinets de
Copenhague et de Stockholm et de ne pas augmenter, par
de trop grandes exigences, les embarras de leur position.

1854, Jan. 12.
J'attacherais un grand prix a ce que la reponse de
lord Clarendon fut con9ue, autant que possible, dans le
meme sens que la notre, et put tranquilliser entierement la
Suede et le Danemarck sur I'exercice de leur neutrality.
Je sais que le gouvernement anglais n'est pas prepare a
se departir de ses anciennes maximes en mati^re de droit
maritime ; mais je desire qu'au moins dans la pratique il
mette sa conduite d'accord avec la notre, si la guerre vient
a eclater. Tout prouve en effet que ce sera le meilleur
moyen d'accroitre les sympathies que nous temoignent les
deux Cours scandinaves, et a cause de notre bon droit dans
la question generale, et a cause des exigences blessantes
que le cabinet de Saint-Petersbourg a mises en avant
aupr^s d'elles. La neutralite meme est un acte d'inde-
pendance envers la Russie que leurs liens de famille et les
6v6nements de ces dernieres annees rendent tres-meritoire
et dont leur puissant voisin ne se dissimule pas le caract^re
peu bienveillant. C'est done une attitude qui peut les
rapprocher plus encore de nous dans certaines eventualites,
et qu'il faut menager avec soin. Trop de rigueur au con-
traire dans la surveillance des relations commercials que
le pavilion marchand de la Suede et du Danemarck tachera
d'entretenir avec les ports russes, pourrait refroidir des

14 The Declaration of Paris

sentiments qui sont en ce moment tels que nous devons les
desirer et amener les discussions d'une nature facheuse.
Je sais que la Su^de compte avec confiance sur la liberte
du commerce sous pavilion neutre.

Apparently the English answer was sent without having been
communicated to France ; and a despatch from Mr Grey, of the
30th January, shows that the French answer was not so explicit
in its acceptance of the principles put forward by Sweden and
Denmark, and did not give entire satisfaction. The non-receipt
of the English reply is difficult to follow, as Lord Clarendon's
despatch was dated the 20th January; it should have been
received in Stockholm on the 30th. On the 6th February,
however, the King of Sweden wished Mr Grey to report " the
satisfaction of the Swedish Government at receiving so friendly
a reply to their Declaration." There was another despatch,
dated the 23rd February, which will be referred to presently.

Mr Grey to Lord Clarendon.
My Lord Stockholm, 30 Jan. 1854.

Mr Lobstein, the French Minister, communicated on
the 24th inst. to the Swedish Government the reply of the
French Government to the Swedish Declaration of Neu-
trality. The Government have expressed themselves as
being satisfied with it as far as it goes, but they would have
wished it to be more explicit, and I am informed that Count
Lowenhielm, the Swedish Minister at Paris, will be instructed
to apply for a further communication on the subject.
Baron Stjerneld said to me to-day that he was most
anxious to receive the reply of Her Majesty's Government,
and begged me to write to Your Lordship to that effect.
He said that the Swedish merchants were somewhat alarmed
on account of the doubt which existed as to the course
England would take as regards the privileges of the
Neutral flag.^

^ Doubts as to the sincerity of the allies' promises in their Declarations
seem to have been felt in Sweden. The United States Charg6 d' Affaires
forwarded to the Secretary of State from Stockholm on the 10th April
a translation of the new Swedish Ordinance [Docimaent No. 14 K] relative
to contraband of war. His comments on the Declaration throw a cxirious
light on the gratitude of neutrals for benefits received :

" You will best know what reliance may be safely placed upon
the equitable promises which have been held out to neutrals by the
belligerent Powers ; seemingly triumphs of the enlightened age
over historic reminiscences of war. It would Ul become me to offer
an opinion of the realities to be looked for ; but the forebodings of
the more intelligent men of the country weigh upon this commvmity ;
and, although xinconfessed by Government, they are the real con-
trolling influences in the Council of State." — [Dociunent No. 8 G.]

Declarations of Neutrality of Scandinavian Powers 15

It is difficult to reconcile all these inconsistencies. But the
policy of a Government must be judged by its public statements.
Even in January some of the problems of maritime law which
the war would bring in its train must have been apparent. If
war were declared, England and France would be in alliance :
it would be in one of its aspects a maritime war : the principles
of maritime law recognised by the two countries were not
uniform. But, seeing that joint action was inevitable, con-
sultation with our ally was essential. It was impossible
for Lord Clarendon to take upon himself to assert that he
intended to adhere to the traditional British belligerent policy
of seizing enemy goods on neutral ships : equally impossible
for him to accept the proposition that the principle asserted
by the Scandinavian Powers was in conformity with the Law
of Nations, or to say without further consideration that in the
circumstances it would be acquiesced in. When the views of
France had been ascertained, the policy which would be adopted
during the war, should it break out, would then be decided.
But Lord Clarendon adopted the one course which was in
direct opposition to the traditional policy of the country ; and
apparently without consulting the French Government. The
Note had received the best attention of Her Majesty's Govern-
ment, and he was " glad to express the satisfaction with which
they have learned the neutral policy " which it was the intention
of the Scandinavian Powers " to pursue," and the measures
"adopted for giving effect to that policy." Her Majesty's
Government did not doubt " that if war should unfortunately
occur, the engagements taken will be strictly and honourably
fulfilled," and would use their best endeavours *' in support of
the neutral position" that these Powers proposed "to maintain."

The matter was not referred to in Parliament until the 10th
February, when the Earl of Ellenborough asked in the House
of Lords whether any communication had been received from
the Scandinavian Powers "as to their intentions with respect
to their utter neutrality, or modified neutrality, in the event of
hostilities occurring in the Baltic." Lord Clarendon replied : —

Yes, they have announced their intention of preserv-
ing a strict and perfect neutrality, and given a list of ports
and fortified places to which ships of war of the belligerents
could not be admitted. Our answer was that we approve
the system of policy which they propose to adopt, and the
manner in which they intend to carry it out. I may also
say that we shall respect that neutrality.

In answer to a further question whether " exception had
been taken with respect to certain Baltic ports essential to the

16 The Declaration of Paris

practical action of our fleet," as "we stood on great inequality
with Russia, whose fleet could shelter in her own ports in stress
of weather, while we had no refuge at hand," Lord Clarendon
said that, " no exception has been taken by us to any part
of the communication, and the naval authorities were consulted
before our answer was sent." He added that great exception
had, however, been taken by Russia. The House being still
in the dark as to the nature of the communication, papers were
asked for on the 13th February, and there being no objection,
the Scandinavian notifications, together with the answers, were
issued in a White Paper.^

The terms used in these despatches are worthy of note.
Sweden and Denmark had informed the prospective belligerents
that they as neutrals intended to adopt certain principles,
asserted to be in conformity with the Law of Nations, which
would assure to them certain advantages. Lord Clarendon
expressed satisfaction with the policy, and the measures adopted
for giving effect to that policy, and stated that the British
Government would support the neutral position which these
States proposed to maintain, and had taken no exception to
any part of the communication. So far as concerned the obliga-
tions which neutrality imposes on non-belligerents, the terms
used by Sweden and Denmark were justified ; but so far as the
advantages which a neutral would derive from it, the last word
rests with the belligerents. In Lord Clarendon's opinion, how-
ever, it is permissible for neutral Governments to lay down prin-
ciples on which belligerents are to conduct the war in so far as the
commerce of those neutrals may be affected. And, further, the
principle which Sweden and Denmark required the belligerents
to adopt was " free ships free goods." It is therefore clear that
Lord Clarendon, after full warning of the intention of these
Powers to claim the benefit of the principle, and after full con-
sideration, had adopted this principle by the middle of January.

Lord Clarendon appears to have consulted Lord Cranworth,
the Lord Chancellor, whose view was that the attitude of Sweden
and Denmark was " one of which we cannot complain." The
Queen's Advocate was Sir J. D. Harding.

Lord Cranworth to Lord Clarendon.

40 Upper Brook Street,
16 J any. 1854.
My dear Lord Clarendon,

I send you back the Swedish and Danish Declarations
of Neutrality, with the Queen's Advocate's opinion on

^ Document No. 1.

Declarations of Neutrality of Scandinavian Powers 17

them. There can be no doubt but that he is right in saying
that the course of conduct which Sweden and Denmark
prescribe for themselves will be one of perfect neutrality,
and one of which we cannot complain. I doubt whether in
such circumstances it would be wise to ask these States to
modify the regulations which they have proposed for them-
selves. But this must depend on the degree of disadvantage
which, in a naval and military point of view, we shall be
likely to incur from having the ports in question left open
to both belligerents. Unless it is very apparent, I should
be inclined not to interfere with their own proposals.

It would be very desirable to get these States to treat
coal as contraband of war. It is not, as I believe, one of the
articles so agreed to be treated in the existing conventions,
and, if I am right, then it is hy treaty an article which is not
contraband of war. If they will not agree to add it to the
articles now forbidden as contraband, it will be for considera-
tion whether the altered state of things since the dates of
the existing treaties, does not warrant us in saying we shall,
in spite of the treaties, prevent its importation into an
enemy's port. But this would be a strong measure, and
not to be resorted to until all other measures fail. I think
you should ascertain what are the existing treaties with
Sweden and Denmark (if any) as to what articles are and
what are not contraband. The Queen's Advocate would,
I dare say, tell you at once. — Very truly Yours,

Cranworth.

I have so far considered the Scandinavian declarations of
neutrality solely as an incident which preceded the outbreak
of the war with Russia, and from these points of view : their
prematurity, their pretensions, and the acceptance of these
pretensions by Lord Clarendon. There^ is another and more
important aspect — ^their historical relation, already hinted at, to
the Armed Neutralities. In the manner of putting forward
the claim, in the assumption that these two Kings were the
infallible interpreters of the Law of Nations, these documents
were so reminiscent of the claims made, and of the manner of
the documents issued by the League of the Northern Neutrals,
that their inspiration must have been palpable even to the
least profound student of history.^ There was more ; it was the
traditional attitude of Sweden towards Great Britain at war.

At the outbreak of the war in 1793, in accordance with their
plan for isolating revolutionary France, Sweden, with other

^ See vol. i. of this series — The Documentary History of the Armed
Neutralities ; and vol. v., where the history of the Leagues will be dealt
with at length.

18 The Declaration of Paris

countries, had been invited by Russia and Great Britain to join
their aUiance. The offer was rejected, the King's intention
to preserve the strictest neutrahty being conveyed through
Holland. But rumours getting abroad in Haarlem and other
towns giving an erroneous interpretation of his attitude, an
instruction on the subject was issued by the King renewing his
intention of observing " la neutralite la plus stricte tant envers
les Puissances combinees qu'envers la France." The document ^
concluded with this sentence : —

Sa Majeste attend de meme, que le Pavilion Suedois
sera duement respecte durant la presente guerre, et en
suffrira pas la moindre insulte, mais au contraire eprouvera
toute assistance possible, et ne sera point trouble dans ce
commerce, auquel un pavilion neutre est autorise.

There is no mistaking the meaning of this declaration ; it
was an intimation that Sweden expected the belligerents to
respect the principle " free ships free goods." The intention
expressed by Sweden and Denmark in their convention of 1794
to protect their ships in the exercise of rights based on treaties,
or founded in the Droit des Gens Universel, " dont la jouissance
ne sauroit etre disputee a des Nations neutres et independantes," ^
was a more circuitous method of saying the same thing.

In the earliest stages, therefore, of the story of the Declara-
tion of Paris, Lord Clarendon put himself in this dilemma : either
he had forgotten the history of our troubles with the neutrals
in 1780 and 1800, or he had deliberately ignored it in favour of
the new opinions which had begun at this time to gain ground —
that our policy during those periods was wrong, and the neutral
contentions right. It seems probable that the new policy was
deliberately adopted. It is not surprising that it was vigorously
attacked by those who believed that England's position in the
world depended, and rightly depended, on the principles on
which her belligerent action was based.

* Swedish Declaration of Neutrality, 5th March 1793. De Martens,
RecueU, v. p. 237 : (2nd ed.) v. p. 567.

* Convention, 27th March 1794, art. iv. ; De Martens, RecueU, v. p. 274 :
(2nd ed.) v. p. 606.

The General Position, 1853-54 19

The General Position, 1853-54.

A. — The Other Neutrals.

The declarations of neutrality issued by the Scandinavian
Powers were too much infected with the spirit of the Armed
Neutralities for this question not to present itself to other
neutral Governments — Were they not bound in their own
interests to follow the lead ? Indeed, the formation of an
armed neutrality by the German States seems at one time to
have been considered possible.^

Yet another unusual question arose. It is the right of
nations that are not parties to the quarrel to remain neutral :
it is customary for them to make a formal statement of their
intentions. But the premature issue of these declarations,
stating the conditions which the belHgerents were required to
observe towards these neutrals, gave them an opportunity to
say whether they agreed ; and they did, in fact, answer as if the
declarations were in order. But then, almost inevitably, this
led to discussion whether the answers received from the belli-
gerents were satisfactory. The Russian answer was considered
unsatisfactory. The neutrals were thus allowed to take charge.
The records are incomplete and do not throw too much light on
this curious position ; and the general principles of neutrality
are confused with the question already alluded to, the closing
of the Baltic ports. The geographical position of the Scandi-
navian countries, lying midway between the belligerents in the
northern area of the conflict, the proximity of Sweden to Russia,
the certainty that there would be fighting in the Baltic, made
the question of the neutral ports one of grave concern to both
belligerents as well as to the neutral countries. In the absence
of any definite guiding principle, a triangular discussion became
inevitable between nations who were not yet neutrals and nations
who were not yet belligerents ; and it was accentuated by the
efforts made by each belligerent to invest the neutrality of
the other States of Europe with the appearance of friendliness
to its cause. For the allies had persuaded themselves that they
were embarking on a holy war ; and, though the invitation to
other countries to join them in the crusade was not so formal as
that given by England and Russia to join the alliance against re-
volutionary France, the hope that their neutrality might at least
be benevolent was conveyed par voie diplomatique. M. Drouyn

1 See p. 20.

20 The Declaration of Paris

de Lhuys, in a Memoire ^ published in 1868, referring to the
joint poHcy which was clearly traced for the allies, says :
*' Elles devraient done veiller a ce que rien dans leur conduite
ne vint blesser les neutralites bienveillantes qu'elles desiraient
transformer en concours avoue." On the part of Russia there
were counter-efforts to eliminate from it anything in the nature
of covert friendliness, and make it " rigorous." Prussia and
Austria were the uncertain factors in the situation. Nominally
they were linked by the common interests of the Germanic
Confederation of which Austria was the leading Power, but
the long-standing elements of discord between them affected
the discussions. Austria very early in the year had proposed
to Prussia that the smaller States of Europe should be invited
to associate themselves with the two leading German Powers
in a declaration of neutrality, urging the necessity of consolidat-
ing the whole of Central Europe into one united body whose
combined military force would enable it to withstand an
attack from any quarter. Baron Manteuffel seems to have
treated this suggestion as referring to political neutrality, and
to have ignored any commerical bearing which might have been
intended. He replied that "the concert and the union which
was most efficacious was that of the four Powers [England,
France, Austria, and Prussia] which was at present most com-
pletely attained in the Congress at Vienna." Lord Clarendon
learned of this answer with much satisfaction.

The King of Prussia was wavering : firm while he relied on
his Foreign Minister, Baron Manteuffel ; weak when his brother-
in-law, the Czar, used his influence over him, which he did
without remorse. For the Scandinavian Powers a joint declara-
tion of neutrality from Prussia and Austria would evidently be
a source of strength. It was the policy of the Czar to separate
them. Sir Augustus Loftus reported from Berlin on the 2nd
December that the King's rejection of the joint declaration
had given rise to the suspicion that he " was about to take an
opposite course of action to Austria with regard to the Eastern

1 The Memoire read before the Acad^mie des Sciences Morales et
Politiques by M. Drouyn de Lhuys in April 1868, is entitled " Les Neutres
pendant la Guerrd d' Orient." It contained a full account of the negotia-
tions between England and France from January to March 1854, relative to
the Declaration issued to the neutrals at the outbreak of war, together
with copies of his own despatches to Count Walewski, French Ambassador
in London. Copies of the pamplilet have entirely disappeared in England ;
but I was fortunate enough to obtain a copy from Paris through the exer-
tions of my friend Mr J. T. B. Sewell, Solicitor to the British Embassy.
Subsequently I discovered that a translation of it had been included in
the Appendix to the Report of the Royal Commission on Neutrality, pub-
lished in 1868. Mr David Urquhart wrote of it with characteristic
vehemence in the Diplomatic Review.

The General Position, 1853-54 21

question." For Prussia the success of either side would be
the inevitable prelude of the reconstitution of the kingdom of
Poland. The British Ambassador had no fear that the King
would place himself at the mercy of Russia so long as Baron
Manteuffel remained at the head of affairs ; " but the Russian
party at Court had lately brought great pressure to bear on
the King and others, by describing the danger to which Prussia
would be exposed if she did not make common cause with the
Emperor Nicholas." At a special interview Baron Budberg
pressed the Russian case with so much success that Baron
Manteuffel interrupted the conversation, asking the King how
Russia would prevent the 1200 Prussian ships which were
dispersed over the world from being captured by British
cruisers, and how Russia would prevent the destruction that
would no doubt instantly fall on the Prussian ports in the Baltic,
of which sea the English would soon be masters. He thought
that instead of the Emperor coming to the defence of Prussia,
he would probably be unable to defend himself, and his capital
would not be safe. The Czar wrote privately to the King,
" and used arguments almost amounting to menaces if he would
not agree to some distinct declaration of neutrality." More
astutely he requested the services of some Prussian officers,
which were, however, refused. The King had shown great
distrust of England, and had caused the British Government to
be informed that he could not go against Russia " if England
continued in the path which she was now doing " — her high-
handed demand that Russia should withdraw from the Danubian
Principalities. Her Majesty's Government expressed disappoint-
ment that Prussia was not prepared to go to war, but hoped
she would be influenced by the conduct of Austria. The
utmost that Baron Manteuffel could promise was that Prussia
might be depended on to strike a decisive blow later. So the
King wavered to and fro — " a reed shaken by the wind," as
the Prince Consort described him to Baron Stockmar — as fear
of Russia and distrust of England alternately got the upper
hand : between alliance with Russia, individual neutrality,
joint neutrality. When joint neutrality seemed almost inevit-
able, Count Orloff was instructed to endeavour to induce Prussia
and Austria " to bind themselves by a declaration that what-
ever the consequences of their neutrality might be, nothing
should make them take part against Russia." ^

^ Ultimately, on the 20th April 1854, Austria and Prussia entered into
a treaty mutually guaranteeing each other's territories, and agreeing to
give mutual assistance in case of aggression. An invitation was to be
issued to all Governments of the German Confederation to accede. In
an additional article it was declared that Austria and Prussia regarded

22 The Declaration of Paris

The joint neutrahty of Austria and Prussia being essential,
the King of Sweden, urged by the Crown Prince, and possibly
encouraged by Austria, decided to send a message to the Diet
" asking for supplies to enable him to take the necessary
measures to maintain the declaration of neutrality." Declara-
tions of neutrality in theory fell within its province. But
Denmark, represented in the Diet in respect of the Elbe Duchies,
was uncertain as to the advisability of the step. The Ministry
did not see how it would be of service in promoting the object
of Austrja, and thought that a joint declaration of neutrality
on the Eastern question by the Diet would never be obtained ;
but it might save Denmark from embarrassment with regard to
Holstein. The Diet did, in fact, adhere, on the 24th July
1854, to the treaty of alliance between Austria and Prussia,
concluded on the 20th April. ^

The attitude of the Crown Prince of Sweden was entirely
favourable to the allies. He suggested that the best way of
bringing the King of Prussia's wavering to an end would be
to include the Prussian Baltic ports in the blockade ; supported
France when she made the definite suggestion, a few days after
the declaration of war, that Sweden should throw in her lot
with the allies and recover the provinces wrested from her by
the House of Holstein. A proclamation of neutrality was,
after all, not necessarily permanent.

Thus it came about that this premature declaration of
neutrality before a state of belligerency existed, though ap-
parently intended only to ensure the safety of neutral com-
merce, developed into a question of a general European
neutrality, stirring all the Chanceries to open up some of the
most critical problems iri European politics. Smouldering ques-
tions, which might or might not have been affected by the terms
of the peace, were fanned into a flame before the war began.

B. — The Relations between England and France.

The interest of the question of belligerent and neutral centres
in the relations of England and France. For good or evil they
were allies. The alliance created two hostile currents of public

the occupation of the Lower Danube by Rxissia as dangerous, but that
they understood that the troops would be withdrawn in accordance with
concessions made to the Christian subjects of the Porte. By a further
separate article Austria was to request Russia to stop her invasion of
Turkish territory, and to guarantee the evacuation of the Danubian
Principalities. Prussia was to support the request, and should Russia refuse,
the article of the treaty providing for mutual assistance in case of aggres-
sion was to be put in force,

* See Table of Historical Events at the commencement of the
Docvunents.

The General Position, 1853-54 23

opinion. A strange influence pervaded non-political England in
the middle of the nineteenth century, yielding to the glamour,
indefinable but very real, of a memory, of a name — " Napoleon."
The third Napoleon mantled himself with all the virtues of the
First ; and the recognition, characteristically English, of the
greatness of the great enemy they had at last vanquished,
enabled him to manufacture the glamour that surrounded in
this country the name he bore. The Emperor of the French
and the English Prime Minister were " the idols of the public."

But there was also strenuous unbelief in any hereditary
virtues having descended to the " Man of December." The
views of those who held this opinion find expression in Mr
Herbert Paul's bitter statement that " England was not her
own mistress, but was tied and bound, not to France, but to
the man who had made France his own." ^ That sardonic
historian declared that for the purpose of these negotiations
Palmerston was as much Napoleon's Minister as Walewski
himself.^ How far the English Ambassador was under the in-
fluence of the French Minister of Foreign Affairs we shall be able
to judge when we come to deal with the negotiations between
the allies in regard to their attitude towards the neutrals. There
is an uncomfortable humility about Lord Cowley's own version
of his discussions with M. Drouyn de Lhuys which makes the
reading of his despatches most unsatisfactory. But whatever
were the undercurrents, French opinion was clear : the world
was to be impressed with the solidarity of the alliance. " On
se rappelle," writes M. Drouyn in his Memoire, " le prodigieux
^lan de ces jours de resolution 6nergique et de cordiale confiance.
Les gouvernements, animes du meme esprit qui entrainait les
deux nations I'une vers I'autre, s'attachaient a faire dis-
paraitre, au profit de la civilisation et de I'humanite, les traces
de divisions seculaires." And all means which could promote
its success were taken. The Consular officers of the two nations,
the Consuls of their respective colonies, and their naval officers,
were to give reciprocal protection to each other's subjects in
different parts of the world ^ : — " Ainsi, aux yeux des nations
6trangeres, la France et I'Angleterre confondaient leurs dra-
peaux." On one point only there seemed to be a possibility
of friction. When war should be declared there would be joint
action at sea ; but the laws of the two countries differed radically
on fundamental points of prize law. England seized enemy
property on the sea, but paid great respect to neutral property ;
if the enemy property was ships they were seized, and any

^ Herbert Paul, History of Modern England, vol. ii. p. 6.
• Document No. 3.

24 The Declaration of Paris

neutral property on board was restored to its proprietors ; if
the enemy property was cargo and the ship neutral, the cargo
was confiscated and the ship released with freight. France,
on the other hand, since 1778, had paid more regard to the flag
than to the property carried under it. If the flag was neutral,
the cargo, even if it belonged to the enemy, was allowed to
pass ; if the flag was enemy, the cargo, even if it belonged to
neutrals, was confiscated. France believed in the virtue of one
formula — " free ships free goods," but took the benefit of
another, " enemy ships enemy goods." England asserted the
bare fact — she seized enemy property. How were these con-
flicting principles to be reconciled, and the two fleets act in
harmony ?

This is not the moment to discuss the merits of the respective
principles ; it was not the moment, in M. Drouyn de Lhuys'
opinion, to discuss them on the eve of war : " I'opposition . . .
^tait tellement radicale, qu'en les dressant les uns en regard
des autres, on se condamnait a une contradiction sans issue." ^
A compromise was essential, because the action of fleets acting
in concert must be uniform. A compromise, a common de-
claration, if only the rHaction could be successfully settled,
would be more satisfactory to all parties concerned, especially
the neutrals. It would redound to the glory of the alliance
if they could achieve " une seule declaration . . . qui, en
constatant mieux notre parfait accord, frapperait plus forte-
ment les esprits."

C. — ^Political Opinion in England.

In the letter which M. Drouyn de Lhuys wrote, 4th January
1854, to Count Walewski, French Ambassador in London,^ he
said that he had reason to think, " d'apr^s un commencement
de polemique que j'ai remarque dans les journaux anglais," that
the commercial world in England was unfavourable to the
rigorous application of the ancient doctrines of her maritime
law.*

It would be out of place here to attempt to analyse the
various springs from which the different political parties in
England drew their inspiration ; but it is material to note how
far that inspiration conduced to the acceptance of the Declara-
tion of Paris, and there are certain facts, to be developed in due

^ This sentence in the Memoire is quoted in full on p. 28.
* This letter is set out on p. 13.

' I have unfortunately been unable to trace the discussion referred to
in the file either of The Times or of the Manchester Chmrdian.

The General Position, 1853-54 25

course, which throw Hght upon the question. The most impor-
tant fact to note is that pubhc opinion as a whole did not support
it ; it cannot claim to accord with what is called the " trend of
political thought." Nor, except in so far as party supports its
leaders in accepting the accomplished fact, can it be said to
have been treated as a party question. It seems rather to have
been the result of the coalition of different sections of thinkers,
each acting under the influence of temperament released from
the hard pressure of fact. On the merits of the war itself
the public supported the policy of the Cabinet, but there was
a small section bitterly hostile. As to the method of con-
ducting war at sea there was a considerable division of opinion,
and it was here that temperament ultimately got the better of
sound judgment based on knowledge of the necessities of war.

The forty years of peace had influenced men's minds in
different ways. Those who called themselves practical men of
business espoused the cause of commerce. To the Manchester
school successful commerce was the noblest aim of existence,
its creed that " the one object of foreign policy was the advance-
ment of trade." To that school were allied the pacifists of those
days, whose doctrine was parodied by the formula, " All war is
wrong, therefore this war is wrong." More accurately, as
proclaimed by its greatest exponent, John Bright, it took
form in the belief that the blessings of peace being so great,
the curses of war so terrible, man, as a reasonable being, when
left undisturbed must naturally so yearn for peace that eventu-
ally war would become impossible.^

But there were others with more dangerous views. As the
facts receding into the distance became dimmer, they subjected
the causes of past wars to cold analysis. Professing to search
for right in the abstract, they assumed the semblance of wisdom,
and were treated as philosophers. The tendency of such
inquiries is towards self-examination, a process which detects
flaws in one's own conduct, the conclusion almost inevitably
taking the common form " perhaps after all we were wrong."
The Philosophical Radicals, as they were curiously called, boldly
passed 'from their legitimate occupation of bettering the people
into the region of foreign relations, for which they were not
too well equipped. Disregarding the facts of history, they did
not hesitate to give their verdict against England. That which
passes as " independence of thought " enabled them to assume
an attitude of detachment from the affairs of their country,
and this, coupled with an intense conviction in the virtues of

^ See John Bright's speech in the debate of 1862 : " 1862," Chap. IV

26 The Declaration of Paris

the age in which they Hved, brought them to regard what others
called the " glorious past " as an " age of barbarism."

The biographies of these learned Radicals leave us in the
dark as to the reasons which induced them to espouse the cause
of the neutrals. Certainly neither the scientific method nor the
historical research on which they prided themselves warranted
the conclusions to which they came. It looks as if it were no
more than a crude application of the doctrine that the criterion
of right and wrong is the promotion of happiness of the greatest
number. The neutrals represented the greatest number, their
happiness depended on enhanced profits, therefore they were
right. No sounder argument is discernible in the speeches of
their spokesman, Sir William Molesworth.

The Philosophical Radicals based their theories on Bentham.
For Bentham war was " mischief on the largest scale " ; it was
the greatest curse on the greatest number, and this was prob-
ably the connecting link between the two sections of the Radicals.
Gibraltar, they thought, was held contrary to " every law of
morality and honour " ; and supremacy at sea meant arrogance
and the assumption of dictatorial power, and the sooner it
became obsolete the better.^ These ideas prepared their minds
for acquiescing in the claims of the neutrals, who also asserted
that England was the arrogant dictator of the seas.

To these were added those, persistent in political life, who,
not in the pride which apes humility, but in humility itself,
believed that we were worse, not better, than other men.

The Declaration of Paris was the product of temperament.
The grave problems which it professed to settle were not argued
on their merits in the open ; the two sides of the question were
never discussed ; the conclusions were come to in secret.

One result of these different currents of thought has already
been emphasised. Consciously or unconsciously, the theories
which the Armed Neutralities had put forward against England
came to be acceptable to English politicians. Another still more
curious result was that they accepted the story of the Napoleonic
Wars in a humble, apologetic sort of way, and thought it their
duty to the world to express contrition for our victory. These
men deliberately advocated, though without acknowledging
their authorship, as principles of the highest political morality,
the very doctrines by which Bonaparte sought to wrest from
England the supremacy of the sea, and reduce this presump-
tuous little island to its true position of having no part nor lot
in the destinies of Europe.

* The English Radicals, C. B. Roylance Kent, p. 386.

Discussion of Allies' Attitude towards Neutrals 27

III

Discussion between England and France as to the Prin-
ciples of Maritime Law to be adopted during the War.

The Scandinavian declarations of neutrality had made one
thing perfectly clear : the question of the neutrals, traditionally
difficult in our own belligerent relations with them, would be
doubly difficult in a war, with France as our ally, on the sea as
well as on the land. The two fleets had already operated to-
gether. On the 2nd June 1853 Admiral Dundas had been
ordered to sail from Malta to Besika Bay to join the French
fleet and put himself under the orders of Stratford Canning,
British Ambassador at Constantinople. On the 22nd October
the two fleets had entered the Dardanelles, and on the 4th
January they were in the Black Sea. Joint action at sea
against Russia was inevitable should war break out ; it would
not be fair to the neutrals if the laws on which their instruc-
tions would be respectively based were radically different.
The British fleet would stop neutral ships with enemy pro-
perty on board, which the French fleet would let go on their
courses ; the French fleet would seize neutral cargo on enemy
merchantmen, which the British fleet would return to its
owners. The neutrals would have a most legitimate grievance.
All questions of their asserted rights apart, they were clearly
entitled to know with certainty what would happen to them
in the event of war. It was obvious that some arrangement
must be come to before war was finally decided on. The
French Government realised at once the importance of the
question. In the two despatches set out in Chapter I.^ from
the French Minister of Foreign Affairs to the Ambassador in
London he betrays his anxiety. Count Walewski is to ascer-
tain what are the views of the British Government on the sub-
ject. He does not conceal his hope that public opinion in
England may be coming round to the French view ; but his
policy is uninfluenced by this hope ; there should be no discus-
sion on the merits of the two systems.

As was natural, the question formed the subject of many
discussions " des les preniiers jours de Janvier " between M.
Drouyn de Lhuys and Lord Cowley, British Ambassador in
Paris, the substance of which were given by him in the Memoire
already referred to.

^ See p. 13.

28 The Declaration of Paris

M. Drouyn dwelt on the importance of a public manifesta-
tion of agreement for the purposes of the war between the two
countries on a question of such great moment as their relations
with the neutral Powers. In order to achieve this end the
enunciation of absolute principles was to be avoided, " car
I'opposition entre ceux que I'Angleterre maintenait avec une
Anergic traditionelle, et ceux que nous faisions gloire de defendre,
^tait tellement radicale, qu'en les dressant les uns en regard
des autres, on se condamnait a une contradiction sans issue."
It was necessary to find some ground of common action ; these
particular theories could be reserved, and only considered in
case of need. This was only possible on one condition :

C'est que chacun renon9at au moins pour la dur6e de
la guerre, a user des facult^s que I'un des deux s'estimait
permises, mais que proscrivait I'autre. II est concevable
en effet que, sans repudier un droit, sans se departir d'une
pretention, Ton s'abstienne pour un temps de les faire valoir,
tandis qu'on ne saurait, sans inconsequence, exercer meme
exceptionnellement des actes dont on conteste la legitimite.
Ce mode de transaction, laissant intactes les doctrines, ne
heurtait aucun principe, ne soulevait aucun embarras.
Destine d'ailleurs a etre accueilH avec reconnaissance par
les puissances non belligerantes, il etait conforme aux
interets comme aux intentions liberales des allies.

This would mean the abandonment of certain privileges
claimed by the French marine, but it would be in harmony
with the national traditions, always favourable to the rights of
neutrals and the freedom of the seas. The general situation,
M. Drouyn said, encouraged us to take this course. European
opinion was for the most part favourable to France and England
marching to the assistance of an oppressed ally ; this was in
itself an element of strength, which might possibly, in the times
to come, be developed into a still more effective assistance.
It would enable the alliance to be thrown open to all States
which might desire to adhere. The allies were bound, therefore,
to do nothing to wound a benevolent neutrality which they
desired to transform into an open assistance.

The German Courts would have, M. Drouyn thought, a
considerable influence on the progress of events, but they had
been for too long under the ascendancy of Russia ; great and
little States were attached to her by many bonds. Prudence
counselled us to be careful in our dealings with Prussian
commerce ; it counselled us similarly in regard to the Scandi-
navian Powers, owing to their geographical position, which made

Discussion of Allies' Attitude towards Neutrals 29

their friendship precious, their hostility disturbing, to both
parties. The memories of the Armed Neutralities — " ces deux
grandes manifestations " — were among the principal traditions
which bound Stockholm and Copenhagen to Petersburg. If
we revived these old pretensions might we not revive the old
resistance, and throw into the arms of Russia the nations which
in those days had acted on her instigation ? The United States
caused us similar preoccupation. Russia had made a bid for
its sympathy, and was in agreement with that Government as
to the interpretation of the law of the sea, for the Republic of the
New World from all time had maintained the rights of the
neutral flag. Was it wise to give our enemy an opportunity of
rallying the United States to its side and turning her against us ?
The reference in the Memoire to these political arguments
concludes with this ominous sentence, which contains the key
to the policy of secrecy adopted by the Cabinet : —

L'Angleterre n'etait pas insensible a ces considerations,
mais elle les combattait en alleguant I'impossibilite ou
serait son gouvernement d'abandonner, en face du paySy
les regies inviolables de son vieux droit maritime.

It would appear, however, that Lord Cowley had dwelt
particularly on the British Government's fear that the United
States would go against us and lend her seamen to Russia.
In order to prevent this danger arising, and to conciliate the
American Government, the Cabinet had submitted, not only
to the States, but to France and to all the maritime Powers, a
proposal to enter into an agreement for the suppression of
privateers, declaring that in event of war any one furnished with
letters of marque would be treated as a pirate. In a letter
to Lord Shaftesbury, Lord Clarendon claimed to be the author
of this proposal, but the idea seems to have been abandoned.
In regard to it M. Drouyn says that while France agreed that
privateering ought to be abolished as inconsistent with the
customs of civilised nations, she thought nevertheless that it
was desirable to ensure at the same time similar progress in
other branches of the law of the sea. In his recollections of
the conversation M. Drouyn adds this reflection, that the
common practice which we proposed that the allies should
adopt in this war with Russia seemed to us the best step that
could be taken towards bringing about a collective reform on
many points which in our opinion were correlative one with
the other. The opinion of the French Government is noted
at this place, because it had an undoubted bearing on the agree-
ment arrived at after the war in 1856. It must be observed,

30 The Declaration of Paris

however, that nowhere during the negotiations in 1854 was
the point insisted on. On the contrary, M. Drouyn de Lhuys'
poHcy throughout was to keep this opinion in the background.

Conversations on such an important question would natur-
ally be reported to London by the Ambassador ; as M. Drouyn
suggests in one of his despatches, there must have been daily
letters. The only document that a thorough search in the
Public Record Office has disclosed is a despatch from Lord
Cowley to the Foreign Office, dated the 9th February 1854, and
the general tenor of it shows unmistakeably that it was the first
written record of the impression left on Lord Cowley's mind
of what M. Drouyn had said to him, and of his recollection of
his OAvn replies. The despatch and Lord Clarendon's reply
were as follow : —

Lord Cowley to Lord Clarendon.
150.

Paris, Feb. 9th, 1854.
My Lord,

I have had some conversation with M. Drouyn de
Lhuys on the delicate subject of the rights of neutral
Powers. It appears that some of the smaller States, pos-
sibly prompted by Russia, who knows the differences of
opinion which exist between Great Britain and France on
the subject of these rights, have either intimated to the
French Government their intention to remain neutral, or
have asked advice of the French Government whether they
should declare themselves neutral or not. M. Drouyn de
Lhuys informed me with great frankness and friendliness
of manner of the language which he had held, and which
he had since introduced into a circular sent to the French
Missions abroad. He had strongly dissuaded, he said,
any of those States from making any declaration of neutral-
ity. In the first place they would remain neutral, he ob-
served, without declaring themselves to be so. Nine times
out of ten a declaration of neutrality implied partiality for,
and was intended to be favourable to, one of the belligerents.
Secondly, he argued, that it would be a dangerous proceed-
ing for the smaller States to put forth declarations, which
might provoke counter-declarations on the part of any one
of the belligerents. If it was hoped to sow dissensions be-
tween France and England by raising questions on which
it was known they were not agreed the plotters would be
disappointed, for both nations would know how to regulate
their conduct in respect of this matter so as not to impede
the prosecution of the common object which they had in
view. Thirdly, the less the smaller Powers put forward

Discussion of Allies' Attitude towards Neutrals 81

their opinions on this subject, the more likely was the war
to be confined to the East. If divisions became apparent
among the European Powers, if some were tacitly neutral
and others declared themselves to be so, if some put forward
one doctrine and others another, the revolutionary party
would profit by these dissensions to advance their own
schemes, and a war would be kindled of which no one could
foresee the end, whereas unanimity on the part of the
Western States would confine the seat of war to the East.
Lastly, it would be impolitic in neutral Powers to make de-
clarations, when France, the great champion of the rights
of neutrals, could not and would not take part with them.

It might be argued, M. Drouyn de Lhuys continued,
that this language had not been held to Sweden and Den-
mark, but the case was not the same. England and France
now knew that that declaration had been made partly from
a desire to escape from the pressure of Russia in a different
sense upon those two Governments, and it could not be
denied further that if war broke out, it was more than
likely that some of the principal operations would be
carried on in the Baltic, and consequently in the immediate
neighbourhood of those countries.

Nothing could be more amicable than the language
with which M. Drouyn de Lhuys treated this very delicate
question with me, and particularly the points on which he
thought I might take umbrage. He said that the two
countries must be mutually forbearing, that France would
abstain from asserting any principles to which we could
not assent, and that he was sure that we would not have
recourse to measures calculated to provoke discussion.
He had no doubt that Russia counted upon setting the two
Governments at variance upon this point, and he had as
little doubt that she would be disappointed.

I said that I was sure that your Lordship would do
full justice to the frank and loyal manner in which M.
Drouyn de Lhuys had expressed himself, and that every
precaution would be taken by Your Lordship's Government
to prevent the question of the rights of neutrals becoming
a source of entanglement to any future operations under-
taken by the Government in common.

Lord Clarendon to Lord Cowley.

87. Confidential.

,, T Feb. lUh, 1854.

My Lord,

Her Majesty's Government have learnt with extreme

satisfaction, from your Lordship's despatch. No. 150, the

frank and friendly manner in which M. Drouyn de Lhuys

32 The Declaration of Paris

has discussed with you a question upon which so much
difference has existed between the two countries, and upon
which no doubt in various quarters the hope of future dis-
sension is founded ; but nothing will more tend to frus-
trate such expectations than the wise and judicious advice
given by M. Drouyn de Lhuys to those States which have
sought the opinion of the French Government respecting their
neutrality. Her Majesty's Government approve and confirm
the assurances which Your Excellency gave to M. Drouyn
de Lhuys, who may rely that upon this particular question,
as in all others, no effort on the part of Her Majesty's
Government will ever be wanting to preserve the perfect
harmony that now exists between France and England.

It is difficult to believe that Lord Cowley's despatch refers
to the same conversation which M. Drouyn has reported, and
which is supported by the despatches printed in his Memoire.
Its contents seem to indicate that Lord Cowley's memory must
have been singularly at fault. The first statement is difficult
to follow. Do Governments, either of small States or large,
ask the advice of a country on the verge of going to war, much
less of one of two countries in alliance, " whether they should
declare themselves neutral or not " ? If they had, would a
statesman of M. Drouyn's experience have given them the
advice attributed to him : that a declaration of neutrality,
nine times out of ten, " implied partiality for, and was intended
to be favourable to, one of the belligerents " : that it would be
dangerous for them " to put forth declarations which might
provoke counter-declarations on the part of any one of the
belligerents " : and that " the less the smaller Powers put
forward their opinions, the more likely was the war to be con-
fined to the East " ? Sweden and Denmark had not sought
advice ; nor had their declarations provoked counter-declara-
tions. They had indeed been singularly successful in obtaining
recognition of their own views of neutrality.

The rest of the despatch, which relates to the relations
between England and France " on the delicate subject of the
rights of neutral Powers," is most disconcerting. It is difficult
to understand the frame of mind of a British Ambassador who
could find it necessary to emphasise the fact that the language
used by the French Foreign Secretary was " amicable," that
he had expressed himself in a " frank and loyal " manner,
particularly in regard to " the points on which he thought I
might take umbrage " ; or what grounds he had for adopting
without any qualification, or at least reporting without comment
M. Drouyn's statement that France was " the great champion

Discussion of Allies' Attitude towards Neutrals 33

of the rights of neutrals." These remarks create the impression
that Lord Cowley read into M. Drouyn's conversation a homily
on the impropriety of England's conduct in the past, and that
it found an echo in his own conscience, weighted with a sense
of the national guilt. Lord Cowley evidently belonged to that
school of thought to which reference has already been made,
which held England to have been in the wrong, and the neutrals
in the right, in their old disputes, and whose adherents after-
wards openly proclaimed their views in Parliament.

With regard to the law of France, although " free ships
free goods " was incorporated into it in 1778, so long as she
maintained " enemy ships enemy goods " she denied the right of
free commerce with the enemy, as much as England did, when
it tended to the assistance of the enemy. France's historical
position will be fully examined in subsequent volumes. It was
no more than this, that as a belligerent she found the principles
advocated by the neutrals suited her purpose, and she sup-
ported them. But that was forty years before these friendly
conversations. There is no correspondence on record to show
that this question of the neutrals had ever been discussed be-
tween France and England after 1815. France might certainly
have entered a protest, as a potential neutral, when Canning
refused to ratify a treaty negotiated with Brazil which con-
tained a " free ships free goods " clause, and with character-
istic emphasis asserted our ancient principle.^

But diplomatists equally matched do not " take umbrage "
at what is said when they are discussing wars in which their
countries were involved nearly half a century before. It is
quite consistent with perfect friendship for each courteously to
maintain that his country was right in the past, and to pass
on to the more important questions of the present.

The most extraordinary thing, however, is that, according
to M. Drouyn's version of their conversation, these remarks

^ "The riile of maritime law which Great Britain has always held on
this subject is the ancient law and usage of nations ; but it differs from
that put forth by France and the Northern Powers of Eiu-ope, and that
which the United States were constantly endeavouring to establish.
England had braved confederacies and sustained wars rather than give
up this principle ; and whenever, in despair of getting the British Govern-
ment to surrender it by force, recourse had been had to proposals of
amicable negotiations for the purpose of defining, limiting, or qualifying
the exercise of the right of search, Great Britain had uniformly declined
all such overtures from a conviction of the impracticability of qualifying,
limiting, or even defining in terms that would be acceptable to the other
party the exercise of a right without impairing, if not sacrificing, the
right itself." — (From Canning's despatch to Sir Charles Stewart: quoted
by Lord Derby, 22nd May 1856. Hansard, cxlii. col. 53.)

84 The Declaration of Paris

were not made. They are inconsistent with the poUcy which
he had decided to adopt, not to raise any question on the
respective merits of the two laws, and the subsequent corre-
spondence shows that he loyally abided by that decision.

But, taking M. Drouyn's own version of the conversations
as accurate, there were many historical points on which Lord
Cowley could have set M. Drouyn right.

He might have reminded him that, so far from the memories
of the Armed Neutralities being among the principal traditions
which bound Stockholm to Petersburg, Sweden and Russia had
been at war soon after the League of 1780 had been dissolved,
and each had abandoned the famous principles. He might
have reminded him that, so far had the Republic of the New
World been from maintaining " from all time " the rights of
the neutral flag, the principle of seizing enemy property on
neutral ships had been expressly recognised in the Jay Treaty
with England in 1796. He might have reminded him too of
Jefferson's well-known answer to France : —

The French complain " that the English take French
goods out of American vessels, which is " said to be " against
the law of nations, and ought to be prevented by us. On
the contrary, we suppose it to have been long an established
principle of the law of nations, that the goods of a friend
are free in an enemy's vessel, and an enemy's goods lawful
prize in the vessel of a friend. The inconvenience of this
principle . . . has induced several nations latterly to stipulate
against it by treaty, and to substitute another in its stead
that free bottoms shall make free goods. ... As far as it
has been introduced, it depends on the treaties stipulat-
ing it, and forms exceptions in special cases to the general
operation of the law of nations. We have introduced it
in our treaties with France, Holland, and Prussia ; the
French goods found by the latter nations in American
bottoms are not made prize of. It is our wish to establish
it with other nations. But this requires their consent also,
as a work of time ; and in the meanwhile they have a right
to act on the general principle, without giving to us, or to
France, cause of complaint." ^

There was also the earlier despatch from Secretary of State
Pinckney to the French Minister of Foreign Affairs, dated the
27th January 1789 :—

According to the law of nations, the goods of an enemy
found on board the ship of a friend are liable to capture,

1 Letter from Mr Jefferson to M. Genet, 24th July 1793 ; see Letters of
Hiaioricus, p. 79.

Discussion of Allies' Attitude towards Neutrals 35

and the goods of a friend found on board the ship of an
enemy are safe. The United States and France have con-
sented to change this rule as between themselves. They
have agreed that the goods of an enemy found on board
the vessels of either party shall be safe, and that the goods
of either found on board the vessel of an enemy shall be
liable to capture. The one part of this rule is in conse-
quence of and dependent on the other. The one part cannot
on any principle of justice be abandoned while the other
is maintained. In the treaty with England the United
States retain unchanged the law of nations.

The reference of M. Drouyn de Lhuys to the proposal made
by the British Government to the maritime Powers to abolish
privateering is borne out by a letter from Lord Clarendon to
Lord Shaftesbury, written on the 2nd March 1854,^ in which
he says : —

I take exactly your view of Letters of Marque, and
I some time ago addressed myself privately to the Govern-
ments of France and of the United States saying that,
as we had been driven into the brutal and barbarous
methods of settling differences, we should at least endeavour
to mitigate its horrors, and thus pay homage to the civilisa-
tion of the times we live in, and that I could see no reason
why a licence should be given for robbery by sea, any more
than by land, &c. &c.-

The proposal has been met in a corresponding spirit, and
I hope shortly to settle some change in international law,
for that will be necessary ; but the three greatest maritime
Powers of the world have a right to effect such a change in
the interests of humanity.

I am not yet prepared, however, to make any public
announcement on the subject, because I wish, at the same
time, with the privateering system, to bring our law, or
rather practice, respecting neutral flags more in harmony
with the practice and expressed wishes of other maritime
nations.

M. Drouyn himself might have written the last sentence.
It expresses his views, as recorded many years afterwards, of

* Hodder's Life oj Lord Shaftesbury, vol. ii. p. 467.

' Lord Clarendon would appear to have had several conversations
on the subject of abolishing privateering with the United States Minister.
Mr Buchanan records one in his despatch already referred to, of the 24th
March. The conversation was general, and Lord Clarendon did not
propose the conclusion of a treaty for its suppression, though " it was
evident that this was his drift." According to M. Drouyn de Lhuys,
however, the proposal for a convention had already been made to all
the maritime States some months previously.

86 The Declaration of Paris

what he had hoped ultimately to achieve, but which he thought
it inadvisable to press the British Government to accept, and
did not press till the war was over. And here was the British
Foreign Secretary ready to accept the new doctrines, but not
openly, not " in the face of the people." He is conducting the
negotiations " privately," arid he tells M. Drouyn the reason —
he dare not conduct them openly.

This letter throws a flood of light on all the dark places in
the story ; the absence of despatches in January ; the non-
publication of anything that was ever written on the subject ;
all the secrecy and the mystery that have surrounded it from
that day to this. But although M. Drouyn knew the secret, he
took no advantage of it. It may possibly be put no higher
than this : that as an experienced statesman he saw the danger
which the British Government were running, was not willing
to run the risk of the people in England getting to know what
was afoot, and so he took the game out of the hands of the
British Ministers, and tried to play it for them in the only way
in which there lay any chance of success. But it is a fact that
throughout the negotiations he makes believe that the Cabinet
is reluctant to accept any modification of the ancient law. Only
their perversity, as we shall see, well-nigh baffled him.

I find no record in any biography of the men of the period,
not even in Lord Clarendon's recently published Life, of his
conversion, nor who was responsible for it — most probably
Mr Milner Gibson and Sir William Molesworth.

The secrecy of February was broken on the 27th by what has
all the appearance of a ballon d'essai sent up by Mr Milner
Gibson. Sir William Wray was anxious to know whether Russian
ships chartered by British merchants, laden with corn, would
be allowed to pass British and French men-of-war, having been
already permitted to pass the Bosphorus by the Sultan's firman.
The answer was in the affirmative ; whereupon Mr Milner
Gibson irrelevantly asked this further question : — " Whether the
Government had come to a decision, and whether they will
announce that decision, whether free ships are to make free
goods and neutral flags to be respected ? " The question
could hardly have been so worded unless the questioner had
known that the matter was under consideration. Possibly he
was impatient at his pupil's dilatoriness, and thought it
necessary to force the pace, as he ought by now to be prepared
to make a public announcement. Lord John Russell replied
that the question was one of the greatest importance and was
under consideration, but that an answer would be given before
the declaration of war. Immediately the answer was reported to

Discussion of Allies* Attitude towards Neutrals 37

Paris, M. Drouyn de Lhuys wrote a despatch to Count Walewski.
He had put the matter so plainly before the British Govern-
ment, the settlement of the question for the duration of the
war, whatever might happen afterwards, was so logically simple,
that he could not understand the delay in coming to a decision.
Lord John Russell's answer seemed to suggest that the question
was being considered independently of the French Government.
Nothing could have a worse effect than a want of unanimity
between the allies. A controversy such as Lord Cowley had
indicated as possible was unnecessary if only the course he
had suggested were followed. Once more M. Drouyn de
Lhuys insisted on the wisdom of it. Time pressed, and he was
impatient.

M. Drouyn de Lhuys to Count Walewski.

Mars 1, 1854.

Je regretterais vivement que I'Angleterre proc6dat a
une mesure de cette importance sans se concerter prealable-
ment avec nous. II serait du plus mauvais effet, au d6but
d'une guerre faite en commun, que les deux pays parussent
divises sur des theories, lorsque dans la pratique ils doivent
agir ensemble. Veuillez appeler de nouveau I'attention
de lord Clarendon sur cet objet. II me semble que, sans
reveiller une controverse qui alarmerait des interets que
tout nous conseille de menager avec soin, il serait suffisant
de rediger pour les commandants de nos batiments des in-
structions strictement calcul6es d'apr^s les necessites de la
guerre actuelle et de nature a rassurer les neutres, particu-
li^rement ceux que les habitudes de leur commerce portent
a navigeur de preference dans la mer Noire ou dans la mer
Baltique. De cette fa§on, I'Angleterre et la France reser-
veraient chacune leur doctrine, et leur action se confondrait
dans une meme pratique, que Ton serait toujours maitre
de rendre plus s6v^re, pendant le cours des hostilites, si
les circonstances venaient a I'exiger.

An interview with the British Ambassador followed, in which
the necessity for concerted action between the allies was again
insisted on. M. Drouyn expressed the hope " that no decision
might be taken, and, above all, no declaration on the subject
published, without previous consultation with the French Govern-
ment." The matter was reported by Lord Cowley, with a curious
sense of detachment, on the 6th March, as having been " men-
tioned a day or two ago." From the rest of this despatch it
might be imagined that the proposal for dealing with the rights
of neutrals had emanated from the British Government, and that

38 The Declaration of Paris

they had omitted to consult their ally. By the light of Lord
Clarendon's letter to Lord Shaftesbury the suggestion in the
last sentence is disingenuous, that " it will be for your Lordship
to consider whether an attempt may not now be made to set this
question at rest as far as is in the power of the two Governments
for ever."

Lord Cowley to Lord Clarendon.
285.

Paris, March QtK 1854.
My Lord,

Mons. Drouyn de Lhuys mentioned to me, a day or
two ago, that he had heard that Her Majesty's Govern-
ment was occupied, at the present moment, in consider-
ing the delicate question of the rights of neutrals, and he
expressed the hope that no decisions might be taken, and,
above all, no declarations on the subject published, without
previous consultation with the French Government.

I promised M. Drouyn de Lhuys to inform Your Lord-
ship of his wishes, and I could not resist remarking how
desirable it was that the friendly intercourse so happily
subsisting between the two Governments should be further
cemented by an understanding upon a question, on"^ which,
until now, they had been unfortunately divided. M. Drouyn
de Lhuys responded with much cordiality to this remark,
and it will be for Your Lordship to consider whether an
attempt may not now be made to set this question at
rest, as far as is in the power of the two Governments,
for ever.

Lord Clarendon replied by the following despatch : —

Lord Clarendon to Lord Cowley.
170.

March 9th, 1854.
My Lord,

The subject to which Your Excellency adverts in your
despatch. No. 285, of 6th March, relative to the rights
of neutral flags in time of war, is under the consideration
of Her Majesty's Government, but no decision will be taken
nor any declaration published without previous communi-
cation with the French Government.

The facts recorded in the foregoing pages bear out the
statement that Lord Clarendon fulfilled his intention of keeping
the proposals he was going to make in due course secret. The
French Government, though they knew the plan, were in the
dark as to how it would be carried out. It is curious, therefore,

Discussion of Allies' Attitude towards Neutrals 89

to turn to a small collection of despatches which passed between
the United States and the European Powers, both belligerent
and neutral, in the early months of 1854, respecting the questions
in issue. ^ From this correspondence we find that the United
States Government were informed at all stages of the intentions
of the Cabinet, though the intimate character of the negotia-
tions with France do not seem to have been disclosed.

On the 23rd February, that is, three days before Mr Milner
Gibson's question in the House, Mr Buchanan, United States
Minister in London, informed Mr Marcy that he had asked
Lord Clarendon whether the Government had determined on
the course they would pursue in the impending war, in regard
to neutrals, and whether they would adopt " free ships free
goods." It was of the greatest importance that merchants in
America should know the decision as speedily as possible. Mr
Buchanan was informed that the Cabinet had not yet come to
a decision ; but Lord Clarendon had told him that he " should
be the very first person to whom he would communicate the
result." He then intimated a desire to converse with the
American Minister upon the subject " informally and un-
officially." Mr Buchanan had no instructions, but, as an
individual, he was willing frankly to express his opinions.
He would consider it a breach of confidence to report Lord
Clarendon's private opinions on a question still pending before
the Cabinet, " and on which its members are probably divided."
He had, however, no objection to repeat the substance of his
own observations.

The United States Courts, he said, have recognised the right
of capturing enemy property on neutral ships, and the duty to
restore neutral property on enemy ships. From a very early
period of our history the Government had sought, in favour
of neutral commerce, to change the rule by treaties with
different nations, and to adopt instead the principle of the flag,
the main object being to reduce the occasions on which the
right of search would be exercised. He thought that this would
be best achieved by adopting " free ships free goods " and
" enemy ships enemy goods." The reason why the United
States had not recently concluded any treaties on these lines,
he presumed, was " that until the strong maritime nations,
such as Great Britain, France, and Russia, should consent to
enter into such treaties, it would be but of little avail to con-
clude them with the minor Powers." He would not, however,
be astonished if the British Government " should yield their

^ Printed in State Papers, vol. xlvi. pp. 821-843 [Docviment, No. 8].

40 The Declaration of Paris

long-cherished principle " and adopt the rule of the flag. He
knew positively that Sweden, Denmark, the Netherlands, and
Prussia were urging this upon them ; " but what I did not
know until the day before yesterday, was that the Government
of France was pursuing the same course." He apparently did
not know that Great Britain and France were working together
as allies to come to some common form for their declaration ;
nor that a favourable answer had already been given to Sweden
and Denmark.

The other despatches in this correspondence will be referred
to at the different stages of the negotiations with France to
which they are relevant.

The Riga Despatch.

The position of affairs at the beginning of March 1854, is
now clear. Lord Clarendon had decided in his own mind " to
bring our law, or rather practice, respecting neutral flags more
in harmony with the practice and expressed wishes of other
maritime nations," not for the purposes of the war only,
but permanently. He had confided his wish to his friend Lord
Shaftesbury. M. Drouyn de Lhuys also knew his secret.
Further, he had talked " informally and unofficially " with the
United States Minister, who had drawn his own conclusions.
Lord Clarendon did not think, however, that it was necessary
to obtain an expression of the wishes of the maritime nation
to which he belonged, in the usual way, through Parliament.

Being in favour of the greater and permanent change, he
must also, " privately," have been in sympathy with the French
proposal for the lesser, and temporary, change ; and he cannot
fail to have been impressed with the logic of M. Drouyn's
argument as to the manner in which that change should be
effected. He was still, however, not prepared to make a public
announcement, and two despatches to Lord Cowley, set out
in the following chapter, are entirely non-committal.

Ministers who propose, on their own motion, to make altera-
tions in the ancient laws of England are not entirely free agents.
They are guardians of their own consciences ; but the Law
Officers are guardians of the law, and, when they are consulted,
guide the public utterances of the Ministers. Custom has pre-
scribed the occasions on which the Law Officers must be con-

The Riga Despatch 41

suited. The Attorney-General at the time was Sir Alexander
Cockburn.

The northern trade of Europe was largely in the hands of
British merchants. Subsequent debates dealing with the com-
mercial aspects of the war supply us with some interesting facts
which are pertinent to the question now to be discussed.

Russia's trade with Great Britain was ten times greater than
with any other country ; it amounted to thirteen millions
annually ; and it was no exaggeration to say that her commodi-
ties were produced mainly by the aid of British money. The
intimate commercial relations between the two countries was
probably a relic of the old days of British factories. It is not
difficult to imagine that the business houses established in Riga
and the Baltic ports were in direct descent from their commercial
ancestors who traded under the protection of the factory system.
The trade consisted principally in flax and tallow : Ireland re-
ceived large quantities of flax seed for her cotton industry. It
was said authoritatively that as a result of the custom of cash
payments the Russian interest in consignments did not exceed
15 per cent. What the proper designation of such trade is,
whether " enemy " or " British," and how it should be dealt
with in war, were serious questions which would inevitably have
to be faced by the Government. Russia had assured the mer-
chants of her protection ; it is not surprising, therefore, that they
should inquire, so soon as war was seen to be inevitable, what
protection they would receive from their own country. We learn
from Mr Mitchell's speech in the House of Commons on the
4th July, that Lord Clarendon had in December 1853, with
" absence of official reserve," informed our merchants that " it
would be highly unsafe to make the usual advances to Russia." ^

^ The question of subscribing to Russian loans also arose immediately
after the war broke out, and the British Consul -General to the Hanse
towns was instructed to send the following circular to the Vice-Consuls
explaining the law as to contributing to the foreign loan which the
Russian Government proposed to contract. The circvilar was laid before
Parliament on July 24, 1854 : —
«i gjj^ " Hamburgh, June 30, 1854.

" Her Majesty's Government having taken the opinion of the Law
Officers of the Crown as regards the nature of the crime, and the degree
of penalty which any subject of Her Majesty would render himself liable
to in contributing to the foreign loan which the Government of Russia
propose to contract, I am therefore informed by the Earl of Clarendon
that a British subject contributing to a loan raised on behalf of a sovereign
at war with Great Britain, will be guilty of High Treason, as adhering
to the Queen's enemies.

"I have accordingly to instruct you to give every publicity to this fact
within your Vice-consular district. — I am, etc.

" British Vice-Consul at . . . G. Lloyd Hodges."

42 The Declaration of Paris

But the question was more formally raised in February by the
Board of Trade, and was referred to Lord Clarendon. ^ The result
was a despatch sent on the 16th February * to the Consul at
Riga, for the information of the British merchants, in which,
after consultation with the Law Officers, the law as to trading
with the enemy was explained. Persons resident and trading
in an enemy country are treated as enemies, and their property
is liable to seizure on the sea, even if on board a neutral vessel,
" whether such persons be by birth neutral, allies, enemies, or
fellow-subjects." Clearly then at this point the Attorney-
General's opinion on the law overrode any question of policy.
This is a harsh doctrine, but it is embedded in our law of
war, and it is not necessary to discuss it. I shall confine myself
to making one suggestion. The position of a merchant who
establishes a business in the ordinary course in a foreign country
seems to differ in many respects from that of a merchant who
has so established himself with the implied authority of his
Government ; to the latter it does not seem necessarily to follow
that the same harsh principle of the law should apply. Such an
authority would be implied where British merchants had estab-
lished themselves in a country where " by treaty, capitulation,
grant, usage, sufferance, or other lawful means," the King exer-
cises foreign jurisdiction. The modern principle of exterritoriality
is based on the old factory system, and, if I am right in my sugges-
tion that the British merchants in Russia were lineal descendants
of the old factory merchants, it would not have been unreasonable
to modify the old principle of the law in their favour. ^

1 Lord Clarendon on the 17th March said that the question was referred
to him " about a month ago." But, allowing for the reference to the Law
Officers, the consideration of their report, and the drafting of the despatch
to Riga, it cannot have been later than the beginning of February.
• Document No. 2.

' The " factory system " was, as pointed out in the text, the forenniner
of the modem system of consular jurisdiction which exists in certain
Oriental countries, of which the chief remaining example is China. In
virtue of the commercial treaties the subjects of other coimtries enjoy the
privilege of exterritoriality, by which, speaking very generally, they remain
subject to their own laws, and to the jurisdiction of their own Consvils.
The difference between the exterritorial and the factory system is that, under
the latter and older system, the whole personnel of the factory, irrespective of
nationality, was subject to the Consul's jurisdiction. It was to all intents
and piirposes a separate colony. Very little is known of the foundation
of the system in Russia ; the following article of the Treaty of Commerce
of 1787 between Russia and Portugal will therefore be of interest : —

'* V. — Les sujets des deux Puissances contractantes povirront dans les
Etats respectifs s'assembler avec leur Consul en Corps de Factorie,
at faire entr'eux pour I'interet commun de la Factorie, les arrangemens
qui levir conviendront en tant qu'ils n'auront rien de contraire aux
loix, statuts et rfeglemens du paj^B, ou de Tendroit otiils seront ^tablis."
— (De Martens, Recueil, iii. 306: (2nd ed.) iv. 315.)

The Riga Despatch 48

It was, however, decided that the law was to be applied.
As Lord Clarendon said, one of the Riga merchants had inti-
mated his intention of continuing his residence in Russia, and
" he had been told the consequences." The consequences were
stated with almost brutal frankness : their property was by
law " enemy property " ; the old doctrine of seizing enemy
property on neutral ships would be adhered to in the impend-
ing war : in other words, free ships would not make free goods.

Lord Clarendon had now put himself in a curious dilemma.
In so far as his own personal views were concerned, or even his
intention, as confided to Lord Shaftesbury, to change the law,
he was right to maintain the law officially. But within a month
of his accceptance of the Scandinavian Powers' intimation that
they expected that their free ships were to make free goods, he
informed the Riga merchants that their goods, being enemy
goods, should not be free on free ships. Yet Riga is a
Baltic port, and it was conceivable that the merchants of
Riga might charter Danish or Swedish vessels to bring their
flax seed and tallow to England. The foundations of a
policy of confusion were thus well and truly laid even
before war began.

The Swedish Government itself appears to have been puzzled,
and to have asked for, perhaps received, explanations ; for, on
the 23rd February, Mr Grey wrote that he had spoken to Baron
Stjerneld on the question of the neutral flag, and had been assured
that the Swedish Government was content not to press for any
explicit answer on the subject from Her Majesty's Government.
The answer of 16th January had not been " explicit " in the fact
that Lord Clarendon had not stated, in so many words, that he
accepted " free ships free goods."

So far as the English law of war was concerned, however,
the principle was clear, and seemed to be clearly stated. But
a firm of London merchants, Messrs Martin, Levin & Adler,
saw difficulties, and put this question to the Board of Trade :
whether " Russian goods imported from neutral ports would
be considered contraband, or would they be fairly admissible
into England ? " The question had little relation to the point
referred to in the Riga despatch, and the firm was informed ^
" that, in the event of war, every indirect attempt to carry on
trade with the enemy's country will be illegal ; but, on the other
hand, bona- fide trade not subject to the objection above stated,
will not become illegal, merely because the articles which form
the subject-matter of that trade were originally produced in an

^ See letter by Mr Emerson Tennent, Docvunent No, 4 (4).

44 The Declaration of Paris

enemy's country." The letter ^ laid down two further principles
of war law : first, that trading with the enemy, indirect as well
as direct, is illegal ; secondly, that the produce of an enemy
country, commonly called goods " of hostile origin," are not per
se tainted either as " enemy property "or as contraband. This
point had been formally admitted by Great Britain in the treaty
with Russia in 1801, and there had not since then been any
question that it was the English view of the general law, quite
apart from treaty arrangements.

The provision in the treaty with Russia was that goods of
hostile origin which had become bond-fide neutral property were
exempt from seizure, though, by a supplementary article,
colonial produce was excepted. The same principle would
obviously apply when such goods had become the property
of British subjects.

The firm, however, thought they had detected a flaw in the
official reasoning. " It appears," they wrote, " that a British
subject buying (by his agents) Russian produce in Russia, and
importing the same via Germany (a neutral country), will be
acting illegally, and goods seized on arrival here ; but that a
neutral subject buying Russian goods and consigning them to
this country from a neutral port will be considered as carrying
on a bond-fide trade, and his merchandise will be admitted for
consumption into England. This would give such a decided
advantage to the neutral over the British subject, that we
cannot believe such to be the intention of the Government."

It is possible that the combined results of the two rules
might have been as the merchants stated. The rule treating
British subjects in certain circumstances as if they were enemies
is clearly arbitrary, but it is rendered necessary by the exigencies
of war. Its consequences may not be very logical. It may well
be that these consequences appear to be hard when compared
with the consequences of another rule which is based on sound
principle ; they can only be avoided by a rigorous adherence
to the spirit as well as to the letter of the law. The Board
of Trade could do no more than refer the firm to the general
principle stated in the former letter, and repeat " that in
the case of articles originally produced in Russia, but since
purchased from neutrals at a neutral port, and in the ordi-
nary course of trade with such port by British merchants, the
fact of their having been originally produced in Russia will be
immaterial."

To revert to the Riga despatch. It was referred to in the

^ The correspondence with the Board of Trade is printed as Document
No. 4.

The Riga Despatch 45

House of Commons on the 13th March, when a somewhat irregular
discussion arose out of a question put by Mr Mitchell, Member
for Bridport. He hoped that the Government would shortly
state their intentions with respect to the neutrals, because a
statement made on a previous occasion by the Secretary to the
Treasury " appeared to be irreconcilable with the document
issued by the Secretary of State for Foreign Affairs."

Sir Charles Wood, President of the Board of Control, said
that the Government would make a statement at the earliest
possible moment ; whereupon Mr Milner Gibson " took the
liberty " of drawing the attention of the House to the fact that
a public declaration of policy had already been made in the Riga
despatch, and dwelt on the hardship it would cause to British
commerce if it were insisted on. He hoped they were not to con-
sider the despatch of Lord Clarendon as the rule that was to be
adopted in the Baltic, because, " not only would it be calculated
to cause collision with friendly Powers, not only would it have
no effect in bringing the war to a close, but it would rather, on
the contrary, have the effect of prolonging it." Then, taking
up the thread of the hints he had dropped on the 27th February,
he indicated the policy which he and a section of the House
were prepared to urge on the Government. Unless the question
of the neutrals " should be dealt with in a different spirit from
that which was manifested in former times, it might bring this
country into a collision with the United States of America."
The principle laid down in the Riga despatch would authorise
the boarding and rummaging of every United States ship by
British officials " to see if they could find some bale or package
in which there might be, directly or indirectly, a Russian interest"
which would lead to its condemnation. He was " in hopes
that the sounder policy would be adopted, that free ships would
make free goods, and that the country would be spared the
risk of being brought into collision with the friendly Powers."

The Secretary to the Treasury (Mr J. Wilson) then explained
his previous statement. The question put to him, he said, had
nothing to do with imports to or exports from Russia. It was
solely a commercial question which had been decided by the
Treasury — whether Russian produce imported by a neutral
Power in a neutral ship the property of a neutral subject would
be held sacred or be liable to seizure ; which was an entirely
different question from any which might arise with respect to
direct trade with Russia. Apparently the Treasury answer was
that such produce would be held " sacred."

On the 17th March the question was formally raised in both
Houses of Parliament : in the Lords, by the Marquis of Clanri-

46 The Declaration of Paris

carde, on a motion for copies of correspondence which had led
up to the Riga despatch ; in the Commons, on a motion by
Mr Milner Gibson, that instructions be given to British cruisers
not to interfere with neutral vessels carrying enemy property
not contraband of war.

Lord Clanricarde did not question the law laid down in the
despatch, but objected to the indistinct and abrupt terms in
which it was couched. He was, however, anxious to know
whether it was to be taken as " representing the positive decision
of the Government " ; and he presumed that it was not in-
tended to convey the opinion of the Government in regard to
the rights of the neutrals. " So grave a subject as that, and one
which had led to so much controversy, ought not to be discussed
in that sort of incidental correspondence."

Lord Clarendon replied in the Lords. Coming at this time, a
speech from the Foreign Secretary must have been looked forward
to with anxiety, as well by those who believed that no change
ought to be made in our maritime practice as by the British
merchants whose trade was in jeopardy. With the war practi-
cally certain, all parties would naturally expect that the policy
in regard to the neutrals would by this time have been decided.

Lord Clarendon had not seen the Emerson Tennent letter.^
But he justified the Riga despatch, regretting that it should
seem to have been expressed with " unnecessary curtness or
severity." On receipt of the Board of Trade letter, he said,
" I immediately took advantage of all the means at my command
to ascertain what the law really was in reference to it, and
having ascertained it, I stated it as clearly and concisely as I
could in my despatch. In such despatch I explained to him [the
Consul at Riga] that by the law and practice of nations a belli-
gerent has a right to consider as enemies all persons who reside
in a hostile country, or who maintain commercial establishments
therein, whether such persons are by birth neutrals, allies,
enemies, or fellow-subjects ; that the property of all such
persons exported from such country is res hostium, and, as such,
is looked upon as lawful prize of war. Such property, I said,
would in fact be condemned as prize, although its owner might
be a native-born subject of the captor's country, and although
it might be in transitu to that country, and the fact of its being
laden on board a neutral ship would not protect it."

But the hard case of the Riga merchants had not been over-
looked. " It has not been possible hitherto to determine on
what principle the dispensing power of the Crown will be exer-

1 See p. 43.

The Riga Despatch 47

cised, whether licences or Orders in Council shall be resorted
to." Being for the first time engaged with a naval ally in war,
" it is our duty," he added, " to be very clear as to the principles
we are about to adopt, and the departure which we shall sanction
from our former law and practice . . . before we can call on
the French Government to adopt those principles, and to
protect British commerce and property in a way that the French
might not in ordinary circumstances see to be right." He
concluded by saying that he had endeavoured to give all the
information in his power ; " but your Lordships will under-
stand that great caution is necessary in doing so . . . not to
commit the Government to courses which may involve great
responsibility. I think we are nearly in a position to determine
the principle on which we shall allow licences." ^

This part of the speech refers entirely to the question of
British merchants in Russia, and to the grant of licences to
allow them to continue their trade. It is necessary to consider
it separately from the second part, because the departure from

^ In a bundle of loose Miscellaneous Papers preserved in the Public
Record Office, there are many half sheets which bear witness to the fact
that the question of licences was at that time seriously engaging Lord
Clarendon's attention. It appeals from a memorandum in his own hand-
writing, dated the 1st March, that for some time the Government were
determined to avoid having recourse to licences, " as calculated to produce
fraud and undue favour to individuals." But there is a slip on which a
query is written, also in Lord Clarendon's hand, " Whether Russian
produce from over the frontier to Prussian ports and shipped from thence
by British or Neutral vessels will be subject to seizure and confiscated by
H.M. cruisers ? " This is enclosed in an office inquiry dated 20th March : —

" Lord Clarendon wishes to have the inclosed Query submitted in form to
the Q's Ad^ being a query put to Ld. Clarendon by the Deputation to-day.

" Ld. Clarendon wishes also to obtain a Jorm of Licence for the free
passage of ships laden with Russian produce, etc. He asked me whence
such licences were issued. I said I beheved from the CouncU Office. But
I apprehend that the Law Officers must be first consulted as to the pro-
priety of the wording. They must know at the Admiralty whence such
licences are issued how they are worded."

It would not be legitimate to reconstruct a policy on such very slender
foundations : but some inferences may reasonably be drawn from these
fragments. The memorandum of the 1st March has the word " super-
seded " written on it in pencil. It wotild therefore appear that the
question of licences was being again considered in connection with the
Prussian transit trade ; and it is possible that at the time Lord Clarendon
made the statement given in the text he was hopeful that licences would
fvimish the remedy for what was going on in Prussia.

This memorandum was followed by another in Lord Clarendon's hand,
dated 26th March, evidently deaUng with an appUcation for a Licence : —

" I think the answer to this sd. be that his case with others of a like
kind shall be taken early into consideration.

" A Comee of P.C. and B. of T. will be appointed for granting licences,
and to them I apprehend we ought to refer all the cases we have rec^
together with the opinion of the Law Officers upon them.

M. 26/54. « C."

48 The Declaration of Paris

" our former law and practice " relates only to the system of
licences adopted during the Napoleonic Wars, which was as
much criticised at home as abroad. The statement of the
position is unexceptionable. Being engaged with an ally in
war, obviously the principles on which the licences were to be
granted needed clear definition, for the French cruisers would
be required to recognise British licences, and so to protect
British commerce and property ; manifestly the system could
only be adopted by mutual agreement, for British cruisers
would have in a similar way to protect French commerce and
property. The point made in the speech that "the French
might not in ordinary circumstances " agree to affording this
protection, is not quite intelligible. Napoleon had resorted to
licences to as large an extent as the British Government ; he
had indeed developed the system into the far more dangerous
one known as " neutralisation," by which enemy ships were
transferred to the neutral flag.^ The difficulty that the French
Government might not approve the reintroduction of the
system in its simple form, which would enable our Own mer-
chants to get their cargoes home to England, was probably
illusory. Possibly something might depend on whether the
resulting benefit would be entirely for the British merchants,
or whether the French trade with Russia was sufficiently con-
siderable to make it an important factor in the situation ; but
this was not a question which should weigh with a loyal ally.
As a matter of fact, practically all the Orders in Council and
French ordonnances relating to trade with Russia were identical.
It is doubtful whether any serious discussion on the question
of licences really took place with France. The English des-
patches which are extant are not complete enough for any
statement to be based on them, but M. Drouyn de Lhuys'
Mimoire does not allude to it.

But the moment had apparently at last arrived when Lord
Clarendon thought it advisable to make a public statement as
to his new opinions in regard to neutral rights. Having dis-
posed of the Riga merchants, he proceeded to lift the veil to
prepare the country for what was going on. I assume that
the " we " in his statement refers to the French and English
Governments conjointly.

" With respect to the rights of neutrals," he said, " and in
respect to letters of marque, I trust we are about to set an
example of liberality by which we shall be able to show that,
as far as it is in our power, it is our intention to mitigate the

^ The Licence System is more fully explained in Chapter III. of " 1855."

The Riga Despatch 49

calamities of war, and to act in a manner that shall be con-
sistent with the humanity and civilisation of the age."

This statement requires very particular attention, coming, as
it does, immediately after the defence of the Riga despatch,
and specially because it contains no indication that the con-
templated change was to be limited to the duration of the war.
It is possible that the cautious reference in the earlier part of
the speech to a " departure from our former law and practice "
was zeugmatic, and that it was intended to relate as well to
the seizure of enemy goods on neutral ships as to the licence
system. ThaCt, however, may be passed over in view of the
much more serious confusion of two very distinct subjects in
this short sentence. The " example of liberality " which was
about to be set, the " calamities of war " which were about to
be mitigated, the action which was albout to be taken "consistent
with the humanity and civilisation of the age," were referred in-
discriminately to the rights of neutrals and to letters of marque.
But these epithets are not applicable alike to both these subjects ;
none of them indeed are properly applied to the rights of neutrals.
To abandon the English practice of seizing enemy property on
neutral ships might be described as an act of " liberality " to
the enemy ; to the neutral it was a concession to their con-
venience and to their importunity, nothing more. The abandon-
ment by the French of their practice of confiscating neutral
property on enemy ships was a similar concession. The delay,
the inconvenience, even the financial loss to neutrals resulting
from these practices, could not be described as " calamities of
war." And neither the English nor the French practice could by
any stretch of language be referred to inhumanity or attributed
to want of civilisation. " I do not see," Sir Edward Grey said
in a debate in 1908, " that humanity has anything to do with
seizing enemy property on neutral ships." On the other hand,
to abandon privateering could not by the most imaginative
person be described as an " act of liberality." But the excesses
to which the system had given rise certainly were a " calamity
of war " ; according to the view held in many countries, it
was inconsistent " with the humanity and civilisation of the
age." There was undoubtedly a very strong feeling in this
country against privateering. A petition had been presented
from the Liverpool Chamber of Commerce praying that British
ships should no longer be commissioned as privateers. The
privateers were perpetually bringing us trouble, endless trouble,
during the Seven Years' War. Sir JuUan Corbett ^ says : —

1 England and the Seven Years' War, vol, ii. p. 7.

50 The Declaration of Paris

What the King's cruisers did might possibly have been
borne, but the action of our privateers was outrageous be-
yond endurance. Every year it had been growing worse,
and it is not to be denied that at this time there was a
swarm of smaller privateers in the Narrow Seas who were
not to be distinguished from pirates.

Pitt was honestly doing his best to check the abuses,
but the privateers were incorrigible. What oppressed his
mind from the first was a vision of the three Northern Powers
uniting to protect their trade. He saw how easily on such
a pretence they might gather a powerful combined fleet to
escort their convoys down Channel, and then^ having seen
them clear, it would be open to them to run into Brest,
join hands with the French fleet, and declare war. We
should then be unable to keep command of the Channel or
the North Sea, and the threatened invasion would become
a real danger.

The vision does credit to Pitt's long sight and acute
perception. It was far from fanciful. France was doing
all she could at this time to tempt Sweden into taking a
hand in her invasion project, and Denmark was actually
approaching Holland as to the possibility of forming a
maritime union and taking common action for the assertion
of neutral rights. Pitt, who knew how to make concessions
as well as to be bold, met the danger by bringing pressure
to bear on the Prize Courts to release as many ships as
possible, and by restraining the excesses of the privateers
by administrative action.

. . . By these means the air was cleared. The neutral
Powers were pacified, and the special danger passed.

There is indeed little doubt that the privateers were at the
root of almost all the troubles we ever had with the neutrals. ^
But to apply these high-flown terms to the seizure of enemy
property on neutral ships was an abuse of language. What,
then, was Lord Clarendon's object in linking together two
perfectly distinct subjects by inappropriate epithets ? Was
he not quite master of his subject, speaking to men even
less well - informed than himself ? It certainly succeeded

* The following example may be cited : —

In March 1801 the Danish Minister in London complained of certain
*' atrocities " deliberately committed by British privateers. Lord Hawkes-
bury replied that a searching inquiry had been ordered into the conduct
of the persons accused of violence and inhumanity. If the charges were
substantiated, their conduct would receive the strongest marks of the
Government's disapproval : " attendu que c'est le voeu uniforme de
Sa Majesty, que, meme dans les cas d'hostiht^s ouvertes, toute espece
de cruaut6 ou de s6v6rit6 non n6cessaire soit scrupulevisement 6vit6e par
toutes les personnes, employees au service de Sa Majesty." — (De Martens,
Becueil, Supplement, ii. p. 445.)

The Riga Despatch 51

in producing a mystification, which has prevailed even to
this day.

On the same day, 17th March, in the House of Commons,
Mr Milner Gibson developed his previous hints in a long speech
in support of his motion that

an humble address be forwarded to Her Majesty that
she will be graciously pleased to give special instructions
to the officers commanding Her Majesty's cruisers, in the
event of war, to abstain from interfering with the neutral
vessels on account of any goods or property, not contraband
of war, that may be contained therein, and praying Her
Majesty to direct Her Ministers to consider a policy of
entering into treaty stipulations with the United States of
America, and any other foreign country willing to entertain
the same, on the principle that free ships shall make free
goods, and the neutral flag give neutrality to the cargo.

Like most of his speeches on the subject, it was singu-
larly confused, the good being obscured by vague and useless
generalities, such as this : "It must be obvious to everyone
that after forty years of peace the usages which might have
been adapted to the last war may not be equally adapted now.
. . . Opinions have changed, and we all know that that mighty
power, steam, has been introduced since the last war, and
effected important alterations in maritime communications."

One result of the introduction of that mighty power seems
to have escaped his attention. It had promoted neutral
activities, and suggested important alterations in their methods
of getting cargoes to belligerents, as the " broken voyages "
at Nassau and Matamoros were soon to demonstrate. The
time was hardly opportune to suggest that belligerents should
relax their efforts to counteract these activities.

But the conclusion to which Mr Milner Gibson had come was
that this was " a most favourable moment for entertaining the
question whether great changes may not be introduced into
the principles of international law," which was the view Lord
Clarendon had expressed to Lord Shaftesbury. " We are on
terms of the most perfect amity with France and the United
States, two of the most important naval and commercial Powers
in the world besides ourselves, and therefore we might probably
obtain their assent to such an alteration of the international
law upon this subject as would be befitting the times in which
we live, and as would give liberal scope for commercial trans-
actions in time of war. I ask you to consider whether [this]
war cannot be carried on without infringing to the same
extent as formerly on the rights of commerce and private

52 The Declaration of Paris

property." ... He believed that there was " very good ground
for considering at the present time the policy of entering into
a treaty with the United States and other foreign countries, in
order that free ships may make free goods."

It is singular that a statesman of the standing of Mr Milner
Gibson, who was undertaking to guide the country into a new
way of conducting its wars, should have betrayed so little grasp
of his subject as to suggest that England might obtain the assent
of France and the United States to such a change in the law.
A very slight knowledge of the history of the subject would have
told him that our assent to such a change was the one thing that
those Powers had always been anxious to obtain, and that with-
out that assent there was no possibility of the principle being
recognised as a part of international law.

The point mainly insisted on, however, was that this maxim,
the adoption of which would give " liberal scope for commercial
transactions in time of war," was more suited to the " times in
which we live." No more specific reason was given why the
times had changed since Catherine of Russia had put forward
the same argument, than the introduction of steam. She had
advocated the same doctrine ; she also was anxious to foster
" commercial transactions in time of war," and did not hesitate
to explain what she meant — commercial transactions between
neutral and the enemy. She was certain, she wrote to Count
Pouschkin, her Minister at Stockholm, that the real reason why
England had attacked Holland in 1781 was that the States-
General had adhered to the Armed Neutrality, " d'autant plus,
que par la elle [la Republique d'Hollande] mettoit parfaitement
a convert la navigation et I'industrie commer9ante de ses
sujets, exerc6e pour la plus part en faveur des ennemis de
I'Angleterre." ^

Mr Milner Gibson seemed unconscious that he was advocat-
ing no new doctrine, only a very old one which had been asserted
by the neutrals from 1752 to 1815, and on which at times they
had threatened to insist by force of arms.

When he had aired his favourite theory Mr Milner Gibson
was on more solid ground in dealing with the practical question
of the moment. Although it had been pressed as a perma-
nent principle suited to the times in which we live, the House
must have been surprised to find him continuing in a lower
key : " I do not propose to give up any of our maritime rights."
He admitted that our practice in war was in accordance with
the Law of Nations ; he desired only a modification of the Riga

1 Rescript of the Empress to Count Pouschkin, 1781 : Secret History oj
the Armed Neutrality, by a German nobleman (Coimt Goertz), 1792, p. 209.

The Riga Despatch 58

despatch ; he considered that " searching neutral ships for
enemy goods is totally nugatory for the purposes of this war,'*
because the bulk of Russian produce on the high seas was not
Russian property. He asked simply that special instructions
should be issued that the right be not exercised during the war ;
and he reinforced his arguments by words which might have
been, had in fact been, written by M. Drouyn de Lhuys. If
such instructions were issued we should " make no surrender of
principle — we do not deprive ourselves of the power of exercising
those extreme rights whenever we think fit."

Lord Clarendon had just made an announcement in the other
House as to the Government policy. Mr Milner Gibson promised
to address the House again should that announcement have fallen
short of the principle which he believed to be the only safe one.

Mr Horsfall seconded the motion, and " could not conceive
how any Government could think otherwise."

Lord John Russell said that the Government would " issue
in some shape or other " a document which should declare its
policy.

Mr J. L. Ricardo said that the Riga despatch and the Board
of Trade correspondence ^ were totally at variance. He then
started a new point, of which more was to be heard in subsequent
debates. Dwelling on the injury to our own manufacturers if
we " prevented the imports of Russia coming into this country,"
he hoped we should not be governed " by old and antiquated
notions," but abide by the " sounder and fairer notions " we
had adopted in regard to commerce. Mr T. Baring complained,
more practically, of the injury to trade caused by the delay in
the announcement of the Government decision.

John Bright spoke a few words. He hoped the Government
would " take a wise course " and change the law. If they did
not, our commerce would be overtaken by the United States ;
" otherwise war with the United States was inevitable." As
for the law, he never could see " any justice in what we called
the Law of Nations on this subject." Then, not weighing his
words with his customary care, he declared that " The property
on board a neutral ship should be as sacred from the intrusion
of enemies as the property of a neutral on shore."

Lord John Russell requested the forbearance of the House.
The question was being considered, and a document was being
prepared which required very especial care, as France had to
be communicated with. He added the important statement :
Though the views of the Government are decided, " it was

1 Document No. 4.

54 The Declaration of Paris

necessary to see whether they were agreeable to the Government
of France."

These two debates of the 17th March taken together, as well
as the preliminary discussions on the 13th, are incomprehensible.
As we shall see in the next chapter, negotiations had been for
some time going on with France as to the policy which the allies
were to adopt with regard to the neutrals. They had reached a
difficult stage, and the utmost circumspection was necessary.
A debate in Parliament is often the least circumspect of dis-
cussions. It was eminently undesirable at the moment ; it
was obviously premature, as the allied policy had not been
definitely decided ; and it might lead to evasive statements by
Ministers, which the House of Commons dislikes. But the
parliamentary tradition recognises the expediency of caution
when delicate negotiations are pending, and the House would
certainly have acquiesced in the forbearance which Lord John
Russell requested at the end of the debate if he had more boldly
asked for it at the beginning. As it was, he made a statement
which, if it had been true in fact instead of being very wide of
the mark, might have jeopardised the whole of the negotiations :
" The views of the Government are decided." They were, most
unfortunately, very undecided. The result was a general dis-
cussion in Parliament of a policy not yet determined, than which
nothing is more likely to bring either parliamentary debate or
diplomatic discussion into disrepute. But the debate gave
Lord Clarendon the opportunity to lift the veil.

On the 16th March he had done something more than lift
the veil to the United States Minister. It transpired from a
letter of Mr Buchanan to the Secretary of State at Washington
that Lord Clarendon had explained to him exactly how the
question stood. This important letter will be considered in
the next chapter, in connection with the then-pending negotia-
tions with the French Government.

The remarkable feature about the debate, however, is not so
much what was said as what was left unsaid. The merchants
were in real alarm at the consequences threatened by the Riga
despatch ; they were unreasonably alarmed at the Board of
Trade correspondence ; the subject was evidently one of great
complexity, which it was difficult to explain in official corre-
spondence. But there was not one word said in either House,
by speakers on either side, referring to the answer which had
been given to the Scandinavian Declarations of Neutrality. The
correspondence had been published in a White Paper ^ in

* Document No. 1.

The Riga Despatch 55

February. Had nobody read it ? Or, reading it, had no one
understood ? Undoubtedly the law laid down in the Riga
despatch was harsh, but it was the law of war. Mr Milner
Gibson could have made a strong case for mitigating it if he
had reminded the House of the answers given to Sweden and
Denmark. His vague allusions to international law would have
been unnecessary if he had referred to Government action
actually taken, to opinions which seemed to have been actually
formed, to promises actually made to the important neutrals
of the North, all of which were at variance with the despatch.
Yet he did not mention them. Still more extraordinary, those
— and there must have been many — who objected to the
concessions made to Sweden and Denmark, who knew that the
Riga despatch did accurately state the ancient law of war against
trading with the enemy, might have effectively contrasted the
two policies, and pointed out the manifest variance between
them. Yet they omitted all reference to the documents but
lately issued for their information.

There is much that is incomprehensible in every stage of
the story ; it is perhaps not surprising that this characteristic
should show itself thus early in the course of events.

Tfie Negotiations between England and France prior to
the Declaration of War.

Lord John Russell's statement at the close of the debate on
the 17th March — that a document was being prepared, but that
the French Government had to be communicated with — did not
give a definite idea that negotiations with France had been going
on for some time. The further statement that the views of the
British Government " were decided " suggested that the Govern-
ment had made up its mind, but that the delay in making its
views public arose from this necessity of consulting the French
Government and persuading it to adopt those views. Lord John
wisely, and more accurately, added : " There are other causes
for unavoidable delay."

During the first week of March, as we have seen, M. Drouyn
de Lhuys was urging prompt concerted action between the
allies in regard to the neutrals, and dwelling on the bad effect
which would be produced if separate and contradictory action
were taken. M. Drouyn's anxiety can hardly have been relieved

56 The Declaration of Paris

by Lord Clarendon's dilatory reply that the Law Officers were
being consulted, but that no declaration would be published
without consultation with the French Government. The roles
of the two Governments had in some curious way become in-
verted. The discussion had been initiated in Paris in the early
days of January, the attention of the British Government had
been called to the extreme urgency of united action, the simplest
and speediest way of arriving at united action had been pointed
out — but so far in vain. February passed, and nothing had been
done ; but at the beginning of March the British Government
had apparently taken the matter into its own hands — might,
for all M. Drouyn knew, be deciding in favour of separate action.
Hence his urgent message to Count Walewski. The only con-
solation vouchsafed to him was that " no decision will be taken
nor any declaration published without previous communication
with the French Government": not "without previous consul-
tation," but " without previous communication." M. Drouyn,
however, interpreted this to mean sans se concerter, and con-
tinued to negotiate. His narrative gives us an insight into
what the British Government had been doing. Although by no
means exhaustive, it is illuminating. A draft for the declaration
to the neutrals had been prepared, and on the 14th March Lord
Cowley presented it to the French Government, intimating that
it had been the subject of much discussion in London, in order
to make it conform as far as possible with French doctrines.

M. Drouyn gives a summary of the draft and of the im-
portant concessions which had been made. Reserving the
question of law, the British Government undertook to confine
visit on the high sea to the verification of a ship's nationality,
and to the steps necessary to establish the absence of contraband
of war, and of enemy despatches : it would admit that the
neutral flag covered enemy property, and neutral goods under
the enemy flag were to be untouched : letters of marque would
not be issued, and British subjects accepting them would be
treated as pirates.

M. Drouyn rejoiced especially at the acquiescence in " free
ships free goods." Enlightened as to the political side of the
question, the British Government, he says, saw the necessity
of reassuring the neutral Powers. Writing in 1868, he cannot
resist giving us his version of the age-old dispute ; and after his
interviews with Lord Cowley, as recorded by him, it is hard to
say he was not justified.

Eclair^ sur le cote politique de la question, le gouverne-
ment britannique avait senti la n^cessite de rassurer les
puissances neutres, qu'effrayait le souvenir de la violation

Negotiations between the Allies prior to War 57

constante de leur pavilion par ses croiseurs pendant les
derni^res guerres, et de toutes les vexations qu'avait
entrainees I'exercice du droit de visite pousse a outrance.
Quand ee droit en effet impliquait la recherche de toutes
les marchandises auxquelles pouvait etre attribuee une
provenance ennemie, il revetait la forme la plus intolerable,
et I'emploi qu'en avait fait la Grande Bretagne etait de
nature a repandre I'effroi parmi les nations non belligerantes.

But M. Drouyn was not satisfied. The " right of search,"
even as restricted in the draft declaration, seemed to him to
leave the door open to abuses, and the French Government
thought that its exercise should be surrounded with guarantees
giving greater protection to the neutrals. Discussions with
Lord Cowley on this subject, as well as on several other details,
having taken place, the draft was sent back to London, recast
in such a form that it was hoped it might be used by both Govern-
ments. The date of its despatch is put by M. Drouyn as the
20th March. There is, however, a telegram from Lord Cowley
to the Foreign Office, despatched at 11.55 a.m. on the 19th,
which gives a different account of the interviews.

Telegram from Lord Cowley to Foreign Office.

Drouyn stated to me yesterday that I should have a
copy of the proposed French declaration in regard to neutrals
this evening. I asked him several questions with a view
to ascertaining whether there was any hitch. The general
impression left upon my mind was that the declaration
would be substantially the same as ours, but that it would
be accompanied by a Note " to Her Majesty's Government "
explaining the French view of certain passages.

The words in inverted commas were added by a further
telegram sent later on the same day.

The reference to " several questions " put " with a view to
ascertaining whether there was any hitch " is inconsistent with
the idea that the new draft was the result of collaboration, but
it is not necessary to unravel this discrepancy. From the first,
as we have already seen from his January despatches. Lord
Cowley's recollections of his intentions differed radically from
those of the French Minister. It will be sufficient to give M.
Drouyn's despatch to Count Walewski concerning the draft, in
which he makes a very explicit statement as to its joint author-
ship. He again emphasised the principle on which the draft
rests — that the fundamental principles of the two countries were
left intact. In this way he hoped to achieve the joint declara-

58 The Declaration of Paris

tion, so essential for bringing home to the world the fact of
the alliance.

From M. Drouyn de Lhuys to Count Walewski.

Mars 20, 1854.
Ce projet a ete prepare entre lord Cowley et moi dans
des entretiens confidentiels sur cette matiere delicate. Je
viens d'en donner communication a M. le Ministre de la
Marine en le priant de me faire connaitre son opinion le
plus tot possible. Nous avons, ce me semble, a opter entre
une declaration commune qui, s'appliquant uniquement a
la presente guerre, n'engagerait pas les maximes deri'Angle-
terre et dans laquelle nous n'abandonnerions pas les notres,
ou deux declarations simultan^es qui, annon9ant les memes
intentions quant a la conduite et aux instructions donnees
aux commandants des forces navales respectives, r^ser-
veraient egalement la difference de nos doctrines : mais
j'inclinerais pour une seule declaration, qui serait plus
satisfaisante pour les neutres, et qui, en constatant mieux
notre parfait accord, frapperait plus fortement les esprits.

On the 24th March, in answer to a question by Sir Fitzroy
Kelly, Lord John Russell said that the document, to the exist-
ence of which he had referred in the debate of the 17th,
would be ready " very shortly." He added that there would
probably be an Order in Council or a Declaration, but he was
not sure whether it might not be necessary to introduce a Bill
into Parliament.

It it difficult to make out exactly what Lord John meant by
this answer. The draft as recast must have been received in
London ; " very shortly " could have no other meaning than
that in its new form it had been practically accepted by the
Cabinet. The facts, however, were very different.

On the 24th, M. Drouyn sent a second and fuller despatch
to Count Walewski on the subject of the draft, in which he
developed the points already alluded to in the short despatch
of the 20th. It seems probable that this second despatch,
elaborating the position taken up by the French Government,
was prompted by the invertebrate debates in Parliament on
the 17th March, the report of which would not have reached
him till after the short despatch of the 20th had been posted.
With so clear a perception of what the necessities of the case
demanded, he must have been in dismay at reading the speeches
of Mr Milner Gibson and his friends urging the Government to
take a step at once which he, M. Drouyn, knew they had already
decided to take in due course of time, and at finding no frank

Negotiations between the Allies prior to War 59

statement of the fact made by the Minister : and puzzled to
understand the meaning of Lord Clarendon's circumlocutions.
It must have appeared to him necessary to bring the Foreign
Secretary back to the realities of the position : to remind him
that, though he knew his secret desire to change the English
practice in regard to the neutrals, though he sympathised with
this desire, while regretting the necessity for keeping it secret,
there was not then time to bring about the change even by
indirect methods. It certainly, at that moment, was not the
wish of France to bring that question to the front. Knowing
the secret, that Lord Clarendon dared not, he was too astute a
diplomatist not to know that, if the ulterior desire were to be-
come generally known, it might wreck the temporary arrange-
ment he contemplated making for the war. Hence, it seems
to me, this second despatch was written : Count Walewski must
once more remind Lord Clarendon of the real position taken up
by the French Government.

It will be well fully to appreciate that position. The point
insisted on from the first was again emphasised : whatever
course of joint action was decided on, it must preserve intact
the fundamental principles, so widely divergent, of the two
countries : in this way only a joint declaration would be possible.
But if the British Government wished to indicate that it reserved
the right to apply such and such principle for the present,
thus insisting that that principle was a recognised right, then
two declarations would become necessary, similar in principle
but different in form. It would be impossible for the French
Government to say that it renounced a right the existence of
which it had always contested. This was a question of form :
the essential thing was that the two Governments should agree
as to the principles to be applied.

M. Drouyn then dwelt on the fact that his Government was
ready to abandon the practice of confiscating neutral property
on enemy ships, in spite of the delicate nature of the question.
It was to be feared that enemy goods on board enemy ships
might escape capture by means of the old trick so familiar to
the neutrals in former wars, lending the neutral flag to the
enemy's ship, known as " neutralisation " ; ^ and possibly a law
would be required to give effect to this new arrangement, more
especially as it would deprive the French marine of a consider-
able portion of their prize money. He would, however, consult
the Minister of Marine so soon as he knew definitely the pro-
posals of the British Cabinet.

^ See the chapter on the " Licences to trade with the Enemy," Chapter
III. of " 1855."

60 The Declaration of Paris

M. Drouyn thought that the abandonment of this practice
would sufficiently counter-balance the abandonment of the
British practice of seizing enemy goods on neutral ships. On
the face of it, and accepting M. Drouyn' s estimate of its
value, the bargain seemed to be the only possible one ; it fell
within the broad principle of mutual surrender of divergent
principles which he had laid down at the commencement of
the negotiations, and apparently the British draft had been
based upon it.*

» From M. Dbouyn de Lhtjys to Count Walewski

Mars 24, 1854.

Les observations que lord Cowley m'a presentees siir le projet de
declaration relatif a la neutrality, que j'ai eu I'honneur de vous adresser
le 20 de ce mois, donnent lieu, de notre part, a certaines remarques sur
lesquelles je crois utile d'appeler votre attention.

Pour parvenir a faire une declaration commune, on devait se bomer
a formuler ce que les deux nations entendaient admettre ou repousser
pendant la dur6e de la guerre actuelle. Les theories de la France et de
I'Angleterre 6tant differentes, il etait indispensable d'6viter tout ce qui
pouvait ressembler a une sorte de declaration de principes. Le projet que
je vous ai communique etait une transaction entre les systemes des deiix
pays ; il ne faisait prevaloir ni I'une ni I'autre de ces doctrines.

Si le gouvemement anglais desire que sa declaration indique qu'il
reserve I'application de tel ou tel principe ou qu'il renonce, quant k present,
k I'exercice de tel ou tel droit, en indiquant ainsi qu'il considere ce principe
comme reconnu, et ce droit comme lui appartenant, il faudra necessaire-
ment en venir a faire deux declarations, semblables quant au fond, mais
differentes quant a la forme ; car evidemment le gouvernement frangais
ne pent dire qu'il renonce a I'exercise d'un droit dont il a toujours contest^
1 'existence, ou qu'il reserve I'application d'un principe, quand il a sans
cesse refuse de la reconnaitre. Ceci du reste n'est qu'une simple question
de forme ; ce qui importe le plus en realite, c'est que les deux gouverne-
ments soient d'accord quant aux regies pratiques qui devront etre
appliquees.

Je passe a I'examen de deux points importants et svir lesquels je vous
invite a appeler plus specialement I'attention de lord Clarendon.

Le premier est relatif aux marchandise neutres saisies k bord de navires
ennemis. Le projet que je vous ai envoy6 dedarait que la confiscation
n'en serait pas prononcee ; c'est la vme question tres-grave en eile-meme,
tres-deiicate surtout pour le gouvernement frangais. II est a craindre en
effet, que les marchandises ennemis chargees a bord de navires ennemis
n'arrivent k naviguer sans danger, au moyen de neutralisations simuiees ;
et d'autre part, les lois frangaises, pronongant la confiscation des navires
ennemis sans admettre d'exception pour les marchandises neutres, il
faudra peut-etre xine loi nouvelle pour enlever aux marins qui ont des
droits k exercer, cette part souvent tres -considerable de letirs prises. C'est
une question du reste au sujet de laquelle j'aurai a m'entendre, comme
BUT toutes les autres, avec M. le Ministre de la Marine. Mais je ne puis
le consulter utilement sur ces divers points que lorsque j'aurai ete officielle-
ment et completement inform6 des propositions definitives du cabinet
britannique.

Le gouvemement anglais paratt insister pour que le projet de declara-
tion defende axix neutres de se livrer, pendant la guerre, soit au commerce
colonial, soit au cabotage, s'ils sont reserves pendant la paix.

Negotiations between the Allies prior to War 61

We learn from this despatch, however, for the first time,
that the British Government had raised in their draft a new
and highly contentious point, which, curiously enough, was

Je n'ai pas besoin de voiis rappeler avec quelle persistance le gouveme-
ment franQais, a toutes les 6poques, a soutenu les rlclamations nombreuses
et vives que I'adoption de cette regie souleva, des Torigine, de la part des
nations neutres. La France est done li6e pax ses pr6c6dents historiques ;
elle Test 6galement par des trait^s faits avec plusieurs Etats, done elle
s'est engagee a laisser les navires naviguer librement en temps de guerre,
meme entre deux ports ennemis. Comment pourrions-nous aujoiird'hui
nous associer k une disposition qui refuserait aux neutres xm. droit que
nous avons toujoiirs revendiqu6 poiu* eux, et que nous avons meme pro-
clam6 solennellement dans nos traites ?

Je n'indique qu'en passant I'interet particulier que cette question
pr^sente pour la France, et les consequences diSerentes que I'adoption
de la regie proposee aurait pour les deux pays. L'Angleterre, qui admet
en tout temps les pavilions etrangers a prendre part au cabotage et au
commerce des colonies, n'a rien a craindre de I'application qui poturait
lui en etre faite ; la France au contraire, qm reserve encore ces naviga-
tions au pavilion national, pourrait avoir 6ventuellement a souffrir de la
regie qu'on I'invite a proclamer.

Je me demande du reste, s'il y a un int6ret considerable, povir la guerre
actuelle, a inserer dans la declaration luie disposition semblable. La
Russie, il est vrai, reserve en temps de paix le cabotage et le cormnerce
des colonies ; mais, dans la Baltique, le cabotage ne se fait qu' entre vox
petit nombre de ports, qu'il sera facile aux flottes de fermer completement
au moyen d'un blocus effectif. II en est de meme de la mer Noire, sur
laquelle les flottes combinees dominent. Quant au commerce de 1' Amerique
russe, qui est le monopole d'une compagnie, s'il vient a etre exerce par
les vaisseaux des Etats-Unis, il on poiwrait r^sulter, dans xin interet minime,
des complications graves, que la France a d'autant plus le desir d'eviter
sur cette question, que son traite de 1778 avec les Etats-Unis est vm de
ceux oil le droit des neutres de se livrer, pendant la guerre, aux commerces
reserves, a ete formellement stipule.

Je me plais a reconnaitre, du reste, tous les efforts que le gouverne-
ment anglais a faits pour se rapprocher autant que possible des doctrines
de la France, et vous pouvez assvirer de nouveau lord Clarendon de notre
d^sir sincere d'entrer dans la voie des transactions mutuelles. Nous en
avons donne la preuve sur la question des marchandises neutres a bord
des navires ennemis. Mais, en ce qui conceme le droit des neutres de se
livrer aux navigations r6serv6es, lord Clarendon reconnaitra, j'en sviis
certain, que la concession ne saurait venir de notre part. Le gouverne-
ment anglais, en effet, qui regarde la prohibition comme fondle sur le
droit des gens, peut bien reconcer a s'en prevaloir, tout en r^servant son
systeme, tandis que la France ne saxui'ait proclamer une regie que, d'apres
ses principes, elle ne se croit pas autorisee k appliquer.

Telles sont les observations que je vous prie de presenter a lord
Clarendon. J'espere qu'elles le determineront a ecarter de la declaration
anglaise une regie que la France ne pourrait faire figurer dans la sienne.
Jusqu'ici les deux gouvemements ont saisi toutes les occasions de faire
ressortir la solidarite complete qui unit si heureusement les deux nations ;
il importe que cette meme pens^e continue de se reveler j usque dans les
regies a 6tablir poiu* les questions secondaires. Si, sur certains points,
les deux pays ne peuvent adopter les memes principes, il me parait du
moins tres- desirable qu'ils 6vitent, surtout dans une declaration solennelle,
d'en proclamer de differentes.

Vous voudrez bien me faire connaitre le plus t6t qu'il vous sera
possible, le r^sultat de I'entretien que vous aurez eu avec lord Clarendon .

62 The Declaration of Paris

omitted from M. Drouyn's summary of it. A clause had been
introduced prohibiting neutrals from participating in the
enemy's colonial and coasting trade ; in other words, the
British Government proposed to insist on the " Rule of 1756."
Against this M. Drouyn de Lhuys vehemently protested. He
recalled the persistence with which France had supported the
frequent protests of the neutrals against this Rule. France was
therefore pledged against it by historical precedents, as well as
by her treaties with many States. How was it possible for her
now to associate herself with a provision which denied to neutrals
a right she had always claimed for them ?

Coming to the merits of the question, he pointed out that
the provision would result in different consequences to France
and England, for England allowed foreign flags to participate
in her colonial and coasting trades, while France, according to
the old monopoly system, reserved those trades for the national
flag. But, he added, after all, was it a practical question ? In
the Baltic the coasting trade — le cabotage — only existed between
a few ports, and both in this sea and in the Black Sea a
blockade by the joint fleets would be equally efficacious. In
regard to Russian trade with its own dependencies in America
it was in the hands of a Company, and, if it should be carried
on by American vessels, questions might arise with the United
States which France would desire to avoid, especially as, in
her treaty of 1778, the right of the neutrals to participate in
these trades during war had been expressly recognised.

M. Drouyn acknowledged the efforts made to bring the views
of the Cabinet into harmony with French doctrines, but Lord
Clarendon must realise that it was impossible to ask France to
make this concession.

This despatch of M. Drouyn de Lhuys has an importance
outside the special circumstances in which it was written. It
is commonly assumed that the " Rule of 1756 " is a doctrine of
the past ; it is certainly true that since the Declaration of Paris
we have heard little of it. We now learn, and I believe
M. Drouyn's account of these negotiations to be the only docu-
ment which contains the information, that the Law Officers in
1854 considered it a very live doctrine.

This is not the place to enter into a long examination either
of the Rule itself or of the vital principle which underlies it.
That will be undertaken in a subsequent volume ; but in view
of the fact that its introduction into the English draft came near
to wrecking the negotiations between England and France in
1854, a brief explanation of the " Rule " is necessary in order
to understand the nature of the discussions which then took

Negotiations between the Allies prior to War 68

place in regard to it. It is unfortunate that only one side of
them remains. It would have been interesting to have read
what Sir Alexander Cockburn had to say on the subject, and
why he thought it necessary to revive it — as some would say —
at so critical a time. But only M. Drouyn's comments upon it
remain for our enlightenment, and a discussion of them is neces-
sary to the understanding of the deadlock which was avoided
by so narrow a margin of time.

There is another important question which will be considered
in due course — how far the signing of the Declaration of Paris
destroyed a Rule which Was fundamental to the whole system
of our maritime law. For the moment it is sufficient to note
Mr Hall's comment, written some years after the Declaration
was in force : It is not " easy to see that the question has
necessarily lost its importance to the degree which is sometimes
thought." 1

The " Rule of 1756," as stated and enforced by the Prize
Courts, is that a neutral has no right in war to participate in a
trade of the enemy which is closed to him in peace. The special
applications of the Rule were to the enemy's colonial and coast-
ing trades. The examination of the decisions involves the
larger question whether this is a complete statement of the
Rule, or whether these are not merely two specific applications
of a far wider principle. The judgments in the Immanuel ^ and
the Whilelmina ^ as to the colonial trade, and in the Emanuel * as
to the coasting trade, seem to indicate very clearly what that
principle is : the right of the belligerent to prevent neutral
assistance to the enemy.

It is sufficient here to refer to a few points which are incon-
testable : first, that during the Seven Years' War, and in sub-
sequent wars, we seized neutral ships which were participating
in the enemy's colonial and coasting trades, establishing thereby
the " Rule " as a principle of our belligerent practice ; secondly,
that this Rule was one of the principles on which England
acted which the Armed Neutralities sought to abrogate by
their first contention — " Que les vaisseaux neutres puissent
naviguer librement de port en port et sur les cotes des nations
en guerre " ; ^ thirdly, that the same clause was introduced
into several treaties subsequently entered into, among them
many to which France was a party ; but fourthly — this on the

^ Hall, IntematioruU Law, 7th ed., p. 682.
a 2 C. Rob., 186.

* 4 C. Rob., App., p. 4. * 1 C. Rob., 296.

^ Russia and Denmark, Armed Neutrality Convention, 1780, art. iii.
De Martens, Recueil, ii. 103 : (2nd ed.) iii. 189.

64 The Declaration of Paris

authority of Mahan — that underlying the Rule there was a
principle which inspired many of the English Orders in Council
and French decrees during the Napoleonic Wars. If, therefore,
we accept either of the theories often advanced, that during
those wars France was seized by a madness which rendered her
not accountable for her actions, but that England, remaining
sane, was accountable ; or, that both nations were mad simul-
taneously, and that their misdeeds must be regarded as flagrant
violations of the Law of Nations ; then so much of M. Drouyn
de Lhuys' statement as referred to France being bound to oppose
the Rule by her treaties with many States was irreproachable.
But with regard to the objection to it — " La France est
done liee par les precedents historiques " — this cannot be put
upon the same high plane, for the protests of France against
the Rule were those of a belligerent. It is quite true that
France with great persistence " a toutes les epoques, a soutenu
les reclamations nombreuses et vives que I'adoption de cette
regie souleva, des I'origine, de la part des nations neutres " ; but
reduced to a simpler expression this amounted to no more than
that she did her best, by encouraging the neutrals in their
protests, to diminish the rigour of British practice at sea which
deprived her of their assistance. He was possibly, however,
on safer ground when he pointed out that a rigorous blockade
of the Baltic ports would render recourse to the Rule un-
necessary in this war.

We may now continue the narrative of the negotiations.

The draft Declaration as recast in Paris was despatched on
the 20th March. M. Drouyn de Lhuys had evidently seen the
Ambassador after posting his long despatch to Count Walewski
on the 24th, and on the 25th Lord Cowley sent the following
telegram to the Foreign Office : —

Telegram from Lord Cowley to Foreign Office.

Drouyn presses for a decision on the neutral question.
If you agree to adhere to the first draft, he will make his
declaration as near to it as possible, leaving out the coasting-
trade clause. If you adopt any other, he begs to have it
without loss of time, as he is asked questions on all sides,
which he avoids answering as yet.

Following on the interview, perhaps not quite satisfied with
Lord Cowley's share in it, M. Drouyn sent a further short
despatch to Count Walewski instructing him to insist once
more on the importance of a joint declaration, and begs for a
decision.

Negotiations between the Allies prior to War 65

M. Drouyn de Lhuys to Count Walewski.

Mars 26, 1854.
Insistez sur les tr^s-graves inconv6nients d'une de-
claration separ^e qui ferait douter de I'entente des deux
pays, alarmerait les neutres, et am^nerait d'involontaires
et inevitables conflits entre les commandants. Si lord
Clarendon accepte le principe d'une declaration commune,
sauf a regler le detail par des instructions separ6es, priez-le
de me faire communiquer son pro jet pour que je puisse
m'entendre avec le Ministre de la Marine et arriver a une
conclusion.

The next day a second and more detailed despatch followed,
in which M. Drouyn dwells on the fact that he has had many
conferences with Lord Cowley, and that Lord Clarendon must
therefore have received almost daily information of his views,
and again refers to the counter-project which he had prepared
with the British Minister.^ Again he expresses the hope that

^ M. Drouyn de Lhuys to Count Walewski.

Mars 27, 1854.

Mes entretiens avec lord Cowley ont et6 consacres depuis quelques
temps, & rexamen de rimportante et delicate question des droits des
neutres. Lord Clarendon a du etre informe presque joumellement de
I'objet de ces discussions, et je sais que M. TAnabassadeur d'Angleterre
lui avait dej&, transmis le pro jet de declaration dont nous avons pose les
bases ensemble. Ce Ministre se trouvait ainsi tout pr6par6 a recevoir la
communication que je vous chargeais de lui faire par ma d^peche du 24
de ce mois, et dont le but 6tait de I'amener k emettre une opinion definitive
sur des points qu'il a eu le temps d'examiner. Ma d6peche t61egraphique
d'hier vous aura prouv6 I'int^ret que le gouvemement de I'Empereur
attache a sortir d'une ind6cision qui, aujourd'hui que I'^tat de guerre
est proclame, ne saurait se prolonger sans les plus graves inconvenients.
J'espere que vos efforts auront d6termin6 le principal secretaire d'Etat de
S.M. Britannique k renoncer au systfime pour lequel il avait laisse percer
ses preferences et qui consisterait dans la publication de deux declarations,
non-seulement separees, mais distinctes quant avix principes qui y seraient
emis ou reserves. Ce n'est qu'avec le plvis vif regret que nous verrions
I'Angleterre adopter une marche qui, des le principe meme d'vine guerre
faite en commun, accrediterait I'opinion d'une divergence entre les deux
gouvemements et affaiblirait, aux yeux de nos adversaires, I'effet politique
de I'union intime et complete qui a donne a notre diplomatic la force qu'il
est maintenant plus necessaire que jamais de conserver pour nos actes.

Si de I'ensemble nous descendons aux details, les dangers ne sont
pas moins grands. Entre la declaration de la France et celle de I'Angleterre,
les neutres feront un choix et nul doute qu'ils ne se rangent plus volontiers
autovu" de la puissance qui, par sa fideiite k des traditions auxquelles ils
sont inviolablement attaches, leur apparaitra comme le champion de leur
propre cause. Ne serait-il pas preferable de leur raontrer leur sm-ete
dans I'union des deux marines et d'eviter avec soin de raviver une vieille
querelle qui alarmerait lenrs interets, exciterait leurs passions et les
reporterait peut-etre moralement dans \in autre camp que le ndtre ?

D'un autre c6te, et ce n'est pas une des moindres objections a faire

66 The Declaration of Paris

the idea of separate declarations has been abandoned, dwelling
on the advantages which the neutrals would derive from a
single document. He has recourse to yet another argument.
The United States would assume the role of protector of the
neutrals. A treaty of commerce had been proposed to France
in which the principles maintained by both Governments would
be affirmed. If the allies were now publicly to declare different
principles, it would not be possible for France to reject the
proposal. But if they came quickly to an agreement, the con-
sideration of it might very well be postponed. He suggests one
way out of the difficulty : so long as the declarations were
uniform, the Instructions to the fleets might deal with the
details in a modified way — provided they were settled jointly
— in the event of special doctrines being referred to in them
by either country.

Without drawing too largely on the imagination, what had
happened to call for yet another long despatch, another reitera-
tion of the old arguments, is fairly clear. On the 26th or 27th

au systeme indique par lord Clarendon, comment concevoir qu'en presence
de deux declarations distinctes etablissant vine separation theorique entre
les gouvemements, leurs amiraux et leurs ofificiers de mer s'entendent dans
la pratique ? II siu-gira entre eux, je ne veux pas dire des conflits, mais
des divergences involontaires et inevitables qui nuiront aux succes de
leurs operations.

Les fitats-Unis enfin sont prets, je ne saurais en douter, a revendiquer
le r61e que nous d^clinerions et a se faire les protecteurs des neutres, qui
eux-memes recherchent leur appui. Le cabinet de Washington nous
propose en ce moment de signer un traits d'amiti6, de navigation et de
commerce oii il a insert une s6rie d'articles destines a affirmer avec une
autorit^ nouvelle les principes qu'il a toujours soutenus et qui ne different
pas des notres. Le pi'incipal secretaire d'Etat de S.M. Britannique com-
prendra que nous n'aiu-ions aucun moyen de ne pas repondre favorable-
ment k I'ouverture qui nous est faite, si la France et I'Angleterre, bien que
se trouvant engagees dans une meme entreprise, affichaient publiquement
des doctrines oppos6es. Que les deux gouvemements, au contraire,
s'entendent sur les termes d'une declaration commmie, et nous pouvons
alors ajoumer I'examen des propositions des Etats-Unis. II me parait
difficile que ces considerations ne frappent pas 1' esprit de lord Clarendon,
et j'espere qu'il se d6cidera a accepter un projet, qui, se bornant a tenir
compte des conditions de la guerre actuelle, laissera de c6t6 des principes
qu'il est d'autant moins opportun de soulever ou de rappeler que leur
application serait inutile, et dont les effets, comme dans la question du
cabotage sur les cotes des pays ennemis, par example, peuvent etre rem-
plac6s par I'emploi de mesures pratiques au sujet desquelles tout le monde
est d'accord. Les instructions donn^es aux commandants des batiments
de guerre des deux pays suppl^eraient naturellement a ce qu'il y aurait
d'incomplet dans la declaration identique ; il serait toutefois necessaire,
meme dans le cas oh ces instructions devraient conserver quelques traces
des doctrines particulieres de la France et de I'Angleterre, qu'elles fussent
concert6es en commun, et vous donnerez k lord Clarendon I'assurance
que M. le Ministre de la Marine emploierait tous ses soins k se rapprocher
autant que possible de I'Amiraute dans les directions qu'il transmettrait
a noa amiraux.

Negotiations between the Allies prior to War 67

March, Count Walewski had received the despatch, dated the
24th, and on that very night in Parliament Lord John Russell
had said that the document would be ready " very shortly," and
talked vaguely about Orders in Council, or Acts of Parliament.
Knowing what was passing in the Minister's mind, Count
Walewski probably telegraphed this speech to Paris, and its
uncertainty must have impelled M. Drouyn to write once more
upon the old theme.

We have now reached a point when cross-purposes obtained
the upper hand : on the 24th March the Russians crossed the
Danube and invaded Turkey, and war had become a question
of hours. But, in spite of its imminence, projects and counter-
projects from London and Paris crossed one another so fre-
quently that it is impossible to maintain a sequence in the
narrative of events. The 26th was a Sunday. There must
have been an informal meeting of some of the Ministers, for
at 11 a.m., in reply to Lord Cowley's of the 25th, the following
telegram was sent to Lord Cowley : —

Telegram from Foreign Office to Lord Cowley.

(11 A.M.).

We have endeavoured to meet the views of the French
Government as far as possible, and I do not think we can
make further changes in the draft sent to you last night.
I believe the Declaration will not be published before
Thursday ;

followed at 9.30 p.m. by a second :

Telegram from Foreign Office to Lord Cowley.
(9.30 P.M.).

Further alterations have been made in the Declaration
which will be satisfactory to France, though we cannot
abandon our principle. I will send a messenger with it
to-morrow.

Meanwhile M. Drouyn had not been idle. After sending his
long despatch to Count Walewski, he sent a new draft for the
Declaration prepared in conjunction with the Minister of Marine,
in which he endeavoured to approximate as much as possible
to the English view. This draft has not been preserved, but
it appears to have been based on the idea suggested in the
despatch of the same day, that the Declaration should contain
a statement of principles only, leaving the details to be worked
out in the Instructions to the fleets.

68 The Declaration of Paris

M. Drouyn de Lhuys to Count Walewski.

Mars 27, 1854.
Cette declaration, que j'ai concert^e d6finitivement avec
M. le Ministre de la Marine, ne consacre que les prin-
cipes essentiels sur lesquels il importe de constater raccord
des deux gouvernements ; des instructions separees, qui
pourront d'ailleurs etre r6ciproquement eommuniqu^es,
r^gleront Tapplication de ces principes suivant la legislation
de chacun des deux pays et resoudront, sous ce point de
vue speciale, les difficultes sur lesquelles la divergence des
doctrines respectives ne permet pas un accord patent, du
moins immediat.

This counter-project crossed one sent from London which
appears to be the draft referred to in the first of the two Sunday
telegrams, for M. Drouyn says that it contained a coasting-trade
clause ; and that on the 28th Lord Cowley informed him that
it had been definitely adopted by the Cabinet. The maintenance
of the clause made it impossible for the French Government to
accept it. Lord Cowley sent a telegram to London to that
effect : —

Telegram from Lord Cowley to the Foreign Office,

28th March.

It is impossible to get an answer respecting the In-
structions to naval commanders to-day. Drouyn will say
nothing without consulting the Minister of Marine, but
that part of them restricting neutrals from the exercise of
the coasting trade will, I fear, not be agreed to.

The reasons for the French attitude were explained by M.
Drouyn to Count Walewski on the 28th.^ From this despatch

1 M. Drouyn de Lhuys to Count Walewski.

1854, Mars 28.

Je regrette, qu'en rappelant dans cet acte des theories qui ne sont
pas les ndtres, et en y insurant I'interdiction du commerce de cabotage
ainsi que le principe de la limitation du commerce des neutres au seul
commerce permis en temps de paix, le gouvemement britannique nous
place dans la n^cessite de faire une declaration separee. Cette declara-
tion comprendra tous les points indiqu6s dans le projet joint a ma depeche
d'hier, sauf le pr^ambxole, dont j'ai fait I'objet d'un rapport a I'Empereur.
J'ai obtenu, ainsi que vous le verrez, I'assentiment de M. le Ministre de
la Marine k la regie qui exempte de la saisie la marchandise neutre a bord
d'un navire ennemi.

Lord Cowley m'a communique en meme temps le projet des instructions
destinies aux commandants des batiments de guerre anglais, en m'anon-
9ant qu'il 6tait sur le point d'etre sign4. Des lors il est superflu de relever
les questions qu'il tend k r6soudre dans un sens oppos6 k nos principes

Negotiations between the Allies prior to War 69

it appears that the Instructions to the British Fleet also had
been presented with the intimation that they were on the point
of being signed. It only remained therefore for independent
Instructions to the French Fleet to be prepared, which M.
Drouyn hoped would not create great inconvenience.

The Times records that a meeting of the Cabinet was held on
Monday, the 27th March, at which all the Ministers were present,
and that it lasted two hours. M. Drouyn gives the result of
it as reported to him : —

Au dernier moment, le conseil fut assemble de nouveau.
Apres une longue discussion, il fut decide que I'article qui
avait provoqu6 nos objections serait raye de la declaration
anglaise. D^s lors I'entente etait complete. Pour arriver
a une identite absolue, il nous etait facile de plier notre
projet aux formes traditionnelles que doivent revetir les
ordres en conseil emis au nom de la reine du Royaume-Uni.
En quelques heures, grace au telegraphe, les deux cabinets
purent constater leur accord et aviser a la publication
immediate de leur declaration commune.

Here the story ends, but there is one other source of informa-
tion from which some of the innumerable gaps may be filled in —
the American despatches which have already been referred to.

We have seen, from Mr Buchanan's despatch of the 24th
February,^ that Lord Clarendon had taken the United States
Minister unofficially into his confidence. He would be the first
to whom the decision of the Cabinet would be communicated.
On the 16th March ^ Lord Clarendon sent for the Minister and
read to him " the declaration which had been prepared for Her
Majesty, specifying the course she had determined to pursue
towards neutral commerce during the war." A summary was
sent to Washington the next day. " Free ships free goods "
had been adopted, and neutral cargoes were to be free on enemy
ships. The subject of blockades was dealt with in an " entirely

et a notre legislation. II ne nous reste qu'a rediger, a notre point de vue,
les instructions destinees a nos propres croiseiirs. Je viens de prier M.
le Ministre de la Marine de preparer ce travail, que j'aurai soin de vous
communiquer pour etre porte a la connaissance du gouvemement
britannique. J'ai I'espoir que, dans I'execution, cette divergence des
instructions n'entrainera pas d'inconvenients graves, car nous sommes
d'accord sur les points les plus essentiels, et je reconnais particulierement
I'esprit de liberality avec lequel le gouvemement anglais s'est rapproche
de nos principes en matiere de blocus. Cependant, si quelque dissenti-
ment se presentait, je n'aurais qu'a regretter d'autant plus les retards
qu'ont eprouves la preparation et la communication des projets sur
lesquels \xcie entente pr6alable aurait 6t6 si desirable.
1 See p. 39. 2 Document No. 8 B.

70 The Declaration of Paris

unexceptional " manner, and in conformity with Americaif
principles. No letters of marque would be issued.

" His Lordship then asked me," continued Mr Buchanan,
" how I was pleased with it ; and I stated my approbation of
it in strong terms. I said that in one particular it was more
liberal towards neutral commerce than I had ventured to hope,
and this was in restoring the goods of a friend, though captured
on the vessel of an enemy."

Lord Clarendon also informed the Minister that he had
repeated to the Cabinet the conversation he had had with him,
" and this had much influence in inducing them to adopt their
present liberal policy towards neutrals." He hoped that this
would prove satisfactory to the United States, "and I assured him
that I had no doubt it would prove highly gratifying to them."

Permission had been given to communicate the substance of
the declaration to Washington, which Mr Buchanan interpreted
to include the publication of a notice informing the shipping
interest of the new practice. One other sentence in this despatch
is of great importance. The draft " had not yet undergone the
last revision of the Cabinet ; but the principles stated in it
had received their final approbation and would not be changed."
This throws light on Lord John Russell's statement on the 17th
March, that " the views of the Government are decided." ^

The draft read to the United States Minister must have been
the one presented to the French Government by Lord Cowley
on the 14th March. Mr Buchanan's summary of it practically
coincides with that given by M. Drouyn de Lhuys, though he
refers to some additional details.

Lord Cowley's telegram of the 19th clearly indicates that
the coasting-trade clause was included in the first draft ; and a
despatch of the 13th April from the United States Secretary of
State also mentions it. So that Mr Buchanan must have over-
looked it, or seeing it had approved. Mr Marcy refers to the
declaration as " distinct in interdicting to neutrals the coasting
and colonial trade with the belligerent, if not enjoyed by them
previous to the war " ; and after glancing at the use to which
the " Rule of 1756 " was put during the French wars, " which
this country held to be in violation of the law of nations," he
enters an emphatic protest against its revival by Great Britain.
" Should she still adhere to those principles in the coming con-
flict in Europe, and have occasion to apply them to our com-
merce, they will be seriously controverted by the United States,
and may disturb our friendly relations with her and her allied

* See p. 64.

Negotiations between the Allies prior to War 71

belligerents." The liberal spirit, he adds, which she had indi-
cated in the other principles with reference to neutral ships and
cargoes " gives an implied assurance that she will not attempt
again to assert belligerent rights, which are not well sustained
by the well-settled principles of international law."

Mr Marcy then expressed the opinion that in some respects
the law of blockade is " unreasonably rigorous towards the
neutrals," and that when they had visited a port " in the
common freedom of trade," they ought to be allowed to take
in cargo after the blockade is established, and freely depart.
He concludes with a brief commentary on the right of search
" so freely used, and so much abused, to the injury of our com-
merce, that it is regarded as an odious doctrine in this country,
and, if exercised against us harshly in the approaching war, will
excite deep and widespread indignation." Caution in its exercise
by the belligerents would therefore be " a wise procedure." He
alludes to the " settled determinations of the English Admiralty,"
that persistent resistance to a search renders a vessel confiscable :
" It would be much to be regretted if any of our vessels should
be condemned for this cause, unless under circumstances which
compromitted their neutrality."

Mr Marcy 's despatch was written (13th April) before the
receipt of a copy of the Declaration which was posted by the
Minister in London on the 31st March. The difficulty of clearly
understanding the whole story is increased by Mr Buchanan's
statement in his covering letter, that the Declaration was
" substantially the same as that which I informed you it would
be in my despatch of the 17th instant."

The British Minister at Washington communicated the
Declaration to the United States Government officially on the
21st April, intimating the confident hope that it would, " in the
spirit of just reciprocity," give orders that Russian privateers
should not be equipped or victualled, or admitted with their
prizes into United States ports, and that its citizens should
rigorously abstain from taking part in armaments of this nature,
or in any other measure opposed to the duties of a strict neu-
trality. This communication was acknowledged by what is
commonly known as the First Marcy Note, of the 28th April.

Before we consider the terms of the Declaration itself, we
must realise the strange fits of indecision through which, on
the eve of war, the Cabinet passed before agreement was come
to as to the attitude to be adopted to the neutrals.

There was, as I read it, a conflict between Lord Clarendon,
supported by such of the Ministers as were in his confidence,
and those members of the Cabinet who, having no pronounced

72 The Declaration of Paris

views of their own on the subject, were probably influenced by
the opinion of Sh* Alexander Cockburn. When he was con-
sulted, the strict letter of the law maintained the upper hand ;
when his opinion was dispensed with, the predilections of Lord
Clarendon prevailed. The Riga despatch was, as Lord Clarendon
declared, written on the advice of the Law Officers. The drafts
of the proposed Declaration were naturally prepared by them ;
the insistence of the " Rule of 1756 " was obviously due to their
advice. We may be quite sure that the final decision not to
insist on its retention in the draft was come to by the yielding
of the Cabinet to the wishes of its " governing member," as Lord
Clarendon has been called. But the influence of the Attorney-
General is, I think, visible in the two Sunday telegrams. They
contain a point of considerable difficulty which I shall not
attempt to solve, but it is too important to overlook. In the
morning no further changes can be made. In the evening, further
alterations have been made—" though we cannot abandon our
principle." Had these two telegrams stood alone we might
reasonably assume that the alteration made was the temporary
adoption of " free ships free goods " ; the principle that
could not be abandoned, the seizure of enemy property on neutral
ships. The reference to " the coasting-trade clause " in Lord
Cowley's telegram of the 25th (which the copying clerk turned
into " the coaling-trade clause ") would have remained mys-
terious. But we now know that this clause was included in
the earliest draft, and the meaning of the Sunday evening tele-
gram is clear : the practice would be waived during the war,
but the " Rule of 1756 " on which it rested could not be per-
manently abandoned. The Rule was, as we shall see in Chapter
VI., suspended by the Order in Council of the 15th April 1854,
which put the Declaration in force.

As to the effect of the United States Minister's opinion on
the Cabinet when it was reported by Lord Clarendon, the one
point which is clear from the correspondence analysed above is,
that it may have induced the dissenting members to accept
" free ships free goods," but that it did not bring about the
suspension of the " Rule of 1756." Mr Marcy's strong protest
was not written till the 13th April.

Thus far, then, the influence of the Law Officers seems to be
unmistakeable. But when Lord Clarendon acted independently
of them he gave full rein to his intention ; he had accepted
" free ships free goods " directly the Scandinavian Declarations
of neutrality gave him the opportunity. It is equally clear
that he did not intend to make a public announcement of his
new faith until he was compelled, and it was too late for him to

The Declarations to the Neutrals 73

be forced by Parliament to draw back. It would not be fair
to say that the confusion of his speech on the 17th March
was deliberate ; but the only other explanation of it is that he
had but the haziest notion of the meaning or of the far-reach-
ing effect of the new doctrines he had espoused, and that he was
hypnotised by the invocations of humanity and civilisation in
which Mr Milner Gibson and the Philosophical Radicals so freely
indulged.

The Declarations to the Neutrals.

The Declaration by the Queen to the neutrals was issued on
Tuesday, the 28th March, and was followed immediately by the
declaration of war.

The Declaration to the Neutrals.

Her Majesty the Queen of the United Kingdom of
Great Britain and Ireland having been compelled to take
up arms in support of an ally, is desirous of rendering the
war as little onerous as possible to the Powers with whom
she remains at peace.

To preserve the commerce of neutrals from all unneces-
sary obstruction Her Majesty is willing, for the present,
to waive a part of the belligerent rights appertaining to her
by the Law of Nations.

It is impossible for Her Majesty to forgo the exercise
of her right of seizing articles contraband of war and of
preventing neutrals from bearing the enemy's despatches,
and she must maintain the right of a belligerent to prevent
neutrals from breaking any effective blockade which may
be established with an adequate force against the enemy's
forts, harbours, or coasts.

But Her Majesty will waive the right of seizing enemy's
property laden on board a neutral vessel unless it be contra-
band of war.

It is not Her Majesty's intention to claim the confisca-
tion of neutral property, not being contraband of war,
found on board enemy's ships, and Her Majesty further
declares that, being anxious to lessen as much as possible
the evils of war, and to restrict its operations to the regularly
organised forces of the country, it is not her present inten-
tion to issue letters of marque for the commissioning of
privateers.

Westminster, 28th March, 1854.

74 The Declaration of Paris

The French Declaration, in identical terms, was approved by
the Emperor on the 29th March, and appeared in the Moniteur
of the 30th April, accompanied by a Report of M. Drouyn
de Lhuys.^

On the same day M. Drouyn wrote to Count Walewski in
terms of great enthusiasm at the successful termination of the
negotiations which had so nearly come to an untimely end : —

M. Drouyn de Lhuys to Count Walewski.

1854.
Je me felicite vivement de la preuve eclatante que la
France et I'Angleterre viennent de donner de leur bon
accord dans la question si importante des droits reserves
aux neutres pendant la guerre actuelle. L'harmonie qui
s'est etablie entre les deux cabinets sur un point ou I'on
aurait pu croire qu'il leur serait, malgre leur sincere envie
d'y parvenir, extremement difficile de s'entendre, produira
partout la meilleure impression et conciliera aux puissances
auxquelles appartient I'initiative de cette genereuse resolu-
tion les sympathies des nations commer9antes dans le monde
entier. Veuillez dire a lord Clarendon que le gouverne-
ment de I'Empereur apprecie comme il le doit I'esprit qui
a preside aux deliberations du gouvernement de la reine
Victoria sur un sujet qui lui tenait particulierement a cceur,
et qu'il en considere le reglement, dans les termes ou il s'est
fait, comme un des meilleurs resultats de I'intime alliance
des deux pays.

On the 30th a circular despatch was sent to the French
diplomatic and consular authorities in neutral countries. ^ It
dwelt on the advantages which the solicitude of the allies had
conferred upon the neutrals, and took the opportunity of im-
pressing upon them the advisability of the neutral Governments
taking all necessary steps to prevent their subjects engaging
in any enterprise inconsistent with the duties of a rigorous
neutrality, this being the condition and the guarantee that the
advantages conferred on them would be maintained. The British
Government was congratulated on having been animated by
the same desires as the Government of the Emperor, and already
penetrated with the idea of leaving the neutrals in possession
of all the advantages which the indispensable necessities of the
war did not make it a duty to restrict. In reciting these advan-
tages, the Minister of Foreign Affairs pointed out that they were
to be enjoyed only during this war ; but he did not fail to note
that, when the war should be over, " cette declaration commune

^ Document No. 5 B. * Document No. 7 B.

The Declarations to the Neutrals 75

demeurera comme un precedent considerable acquis a I'histoire
de la neutralite."

The circular letter was followed on the 5th April by a more
formal notification to be addressed by the diplomatic agents
to the Governments to which they were accredited. ^ The point
was emphasised that in making the concessions to the neutrals
the allies had restrained within very narrow limits the exercise
of their rights as belligerents. A similar notification was sent
to the British agents. ^

Instructions to the fleets followed.^ From M. Drouyn's
account it appears that although the fundamental principles
had been settled in common, some difficulties in their applica-
tion on secondary points had arisen. He treats these differences
as inevitable, and as having their origin in the practice of the
two countries which had for so long been opposed. The
Instructions, therefore, were intended to minimise the effect of
these differences, and appeared to have been the result of a
complementary series of amicable explanations between the
two Governments. M. Drouyn de Lhuys concludes his survey
of the negotiations in exuberant language : —

Places a I'abri des violences de la guerre, ils [les neutres]
n'avaient plus a craindre d'etre entraines dans la querelle
d'autrui, et ils demeuraient libres de poursuivre en paix,
au milieu de combats auxquels ils etaient etrangers, leur
commerce accoutume, pourvu qu'aucune fraude n'appelat
sur eux la severite des belligerantes.

Les neutres profiterent largement de toutes les facilit^s
qui leur etaient accordees. Ils n'en abus^rent point, et
pendant toute la duree de la guerre la France et I'Angle-
terre n'eurent pas a regretter leur genereuse initiative.
Cette experience, comme on devait s'y attendre, fut con-
cluante. Le progres des moeurs secondant la reforme des
doctrines, les nouvelles regies, eprouvees par la pratique
des deux grandes puissances maritimes, furent universelle-
ment acceptees comme un bien pour toutes les nations.
En Angleterre comme en France, les classes commer9antes,
loin de voir avec jalousie la securite que ce regime liberal
donnait a des int^rets rivaux, se fehcitaient du developpe-
ment general des transactions qui en etaient les consequences,
et sentaient que tous etaient appeles a y trouver egalement
leur avantage. L'Exposition universelle de 1855 organisee
a Paris pendant que nos armees de terre et de mer com-
battaient en Crimee et dans la Baltique, fournit, on s'en
souvient, une preuve eclatante de la vigueur et du succ^s

1 Document No. 7 C. ^ Document No. 7 A.

' Documents No. 10 A and B.

76 The Declaration of Paris

avec lesquels les travaux de la paix etaient poursuivis au
sein meme d'une guerre acharnee. Un tel spectacle etait
une gloire pour le si^cle ou il se produisait pour la premiere
fois, et il devait inspirer une juste confiance dans I'avenir
des ide6s dont il signalait le triomphe. De plus en plus les
cruelles necessites de la guerre etaient circonscrites dans
un cercle etroitement trace, en dehors duquel I'humanite
pacifique et industrieuse gardait ses droits.

How far the actual events justified or falsified his rhapsody ;
how far this picture of a commercial Arcadia, where no one
thought of the war which the foolish world outside was
waging, much less of mixing in the quarrel, where each pursued
his own business in peace, is true to fact will be seen in due
course.

The identical Declarations which resulted from the tedious
negotiations between the allied Courts require careful study.
In view of M. Drouyn de Lhuys' determined effort to avoid a
recognition in the French Declaration of any principle against
which France had always protested — " evidemmentle gouverne-
ment fran9ais ne peut dire qu'il renonce a I'exercice d'un droit
dont il a toujours contests I'existence, ou qu'il reserve I'applica-
tion d'un principe quant il a sans cesse refuse de le reconnaitre " —
he seems, in his anxiety to achieve absolute uniformity, perhaps
in the hurry of the final drafting, to have waived the point :
" Sa Majeste consent pour le present, a renoncer a une partie
des droits qui lui appartiennent comme puissance belligerante
en vertu du droit des gens."

One of the belligerent rights thus renounced for the purposes
of the war was the seizure of enemy property (other than contra-
band) on neutral ships. This was a declaration of an absolute
principle. The right of the neutrals which it was assumed to
infringe, freedom of enemy goods on board their free ships, was
one of those " que nous nous faisions gloire de defendre." Yet
here was a positive assertion that this was a belligerent right
recognised by the Law of Nations ! Similarly, in the Queen's
declaration there is a positive assertion that the right to seize
neutral goods on enemy ships was a belligerent right recognised
by the Law of Nations which was not to be enforced during
the war.

It is impossible to exaggerate the importance of this sentence
in the Declarations. It annihilated in advance all the declama-
tion in Parliament against the English principle of seizure as
not warranted by the Law of Nations. The answer which
might have been given by anyone who had read the documents
carefully was : The French Government has recognised it as a

The Declarations to the Neutrals 77

belligerent right which the Law of Nations approves ; has only
asked for it to be held in suspense during the war.

The point will be elaborated hereafter ; but it is well to note
at once that the common ground of belligerent right on which
both these principles of seizure rest can only be the prevention
of neutral assistance to the enemy. The French practice was
aimed at one form of assistance, loading neutral goods on enemy
ships, because of the possibilities of fraud which it opened up,
by means (as M. Drouyn de Lhuys pointed out) of " neutralisa-
tion " ; the English practice was aimed at another but less
occult form of assistance, openly carrying the enemy's goods.

It is interesting to note in passing that the French Declaration
led to a voluminous, and not uninstructive, correspondence
between the Sheffield Foreign Affairs Committee and the Lord
Advocate. 1 His statement that the French law accepted " free
ships free goods " was challenged by the chairman, Mr Jacob
Ironside, who contended that, in the face of this paragraph in
the French Declaration, the statement could not be correct.
It was an ingenious but inaccurate contention. The Lord
Advocate's replies were not very illuminating ; he supported
his statement as to the law of France by reference to an American
text-book, Lawrence's edition of Wheaton !

Thus far we have been dealing with theory only ; there was
a practical question behind it — that question to which Lord
John Russell had alluded on the 24th March, how these new
principles of maritime law ought to be put into force in
England.

M. Drouyn de Lhuys was conscious of the same difficulty in
regard to the alteration of the maritime law of France. Would
it not be necessary to legalise the new regulation as to the non-
confiscation of neutral goods on enemy ships, for it would deprive
the French sailors of part of their prize money ? The question
was really the same in both countries ; but we are specially con-
cerned with its solution as it affects England. The English
question is indeed more complex, because, though France has
adopted in her organic laws the principles of the British Consti-
tution, the mere fact of reducing them to a written law elimi-
nated all those thousand and one minute details of constitutional
principle — more especially those relating to the prerogative —
which, being unwritten in our own case perplex the English
statesman.

The issue of the Declaration to the neutrals on the 28th

^ " The Part of France and Russia in the Surrender by England of the
Right of Search," Sheffield Foreign Affairs Committee (London, 1866).

78 The Declaration of Paris

March was not the solution of the difficulty propounded by Lord
John Russell. The constitutional effect of that Declaration had
to be determined. This question arises again in connection with
the Declaration of Paris, and the discussion will be more con-
venient when we have the whole case before us. In connec-
tion with the Declaration of 1854, however, the Government
took definite action : an Order in Council was issued on the
15th April.

The marginal note to the White Paper describes it as " in
furtherance of " the Declaration. It carried the Declaration
into effect, and at the same time explained its practical opera-
tion. After reciting its terms, it proceeded : —

Now it is this Day ordered, by and with the Advice
of Her Majesty's Privy Council, that all Vessels under a
neutral or friendly Flag, being neutral or friendly Property,
shall be permitted to import into any Port or Place in Her
Majesty's Dominions all Goods and Merchandise whatso-
ever, to whomsoever the same may belong ; and to export
from any Port or Place in Her Majesty's Dominions to any
Port not blockaded any Cargo or Goods, not being Contra-
band of War, or not requiring a special Permission, to whom-
soever the same may belong.

And Her Majesty is further pleased, by and with the
Advice of Her Privy Council, to order, and it is hereby
further ordered, that, save and except only as aforesaid,
all the Subjects of Her Majesty and the Subjects or Citizens
of any neutral or friendly State shall and may, during and
notwithstanding the present Hostilities with Russia, freely
trade with all Ports and Places wheresoever situate which
shall not be in a State of Blockade, save and except that no
British Vessel shall under any Circumstances whatsoever,
either under or by virtue of this Order or otherwise, be
permitted or empowered to enter or communicate with any
Port or Place which shall belong to or be in the Possession or
Occupation of Her Maj.esty's Enemies.

Eliminating all superfluous words, and inserting some which
are of necessity implied, we arrive at the meaning of these very
complicated provisions : —

First. — All neutral or friendly vessels may import into the
British dominions all goods, whether of enemy origin or enemy
property ; and may export from the British dominions to any
enemy port not blockaded all goods, not contraband of war,
even if they be enemy property.

This is a practical expansion of the formula " free ships
free goods."

The Declarations to the Neutrals 79

Second. — Subject to the exception of contraband of war,
British subjects and subjects of neutral or friendly States may
trade freely with enemy ports which are not blockaded, not-
withstanding the war.

There is no limitation in respect of the port of departure ;
therefore, so far as neutral and friendly vessels are concerned,
it includes trading with the colonial or coast ports of the
enemy, and is, therefore, a suspension of the " Rule of 1756."
But—

Third. — No British vessel may (under any circumstances,
either under the Order or otherwise) enter or communicate with
an enemy port.

This excludes British vessels from the privileges granted to
neutral or friendly vessels under the second provision. It also
excludes them from the privileges granted to neutral or friendly
vessels under the second part of the first provision, but includes
them in the privileges granted to such vessels under the first
part of that provision so long as it did not involve communi-
cating with enemy ports ; in other words, a British vessel
was limited to carrying enemy property to the British
dominions from any port which was not Russian. To this
extent they were " free ships," and enemy property on board
became " free goods."

French vessels were accorded all the privileges granted to
neutral vessels.

But although the privileges of British vessels were limited,
it would seem that British traders were under no restrictions ;
for, quite apart from the somewhat vague terms of the trading
privileges in the second provision, the very large terms in which
" free ships free goods " had been stated in the first provision,
both in regard to import and export, to whomsoever the goods
might belong, enabled the neutrals to carry the trade of British
merchants.

The Instructions to the Fleets.

There remained one more document to be issued by each
Government to its fleets, the Instructions to enable the sailors
to carry out the policy of the Government. They had been
referred to on many occasions in the correspondence, and at
one time M. Drouyn de Lhuys thought that the solution of the
difficulty in coming to an agreement might be found by relegating
all details to the Instructions, which would not be published to
the world at large. He was anxious, however, that the two sets
should be uniform. This idea could not be carried out, as the

80 The Declaration of Paris

English Instructions were signed simultaneously with the issue
of the Declaration. The only article which need be noticed
is Art. 7, which provided that neutral ships should not be
stopped because they had enemy goods on board, and that
enemy goods on neutral ships should not be seized.^

The French Instructions, ^ issued on the 31st March 1854, are
somewhat more detailed, and at one or two points seem to go
beyond what the circumstances required. Thus Art. 6 lays
down the general principle : " Les neutres etant autorises par le
droit des gens a continuer librement leur commerce avec les puis-
sances belligerantes. ..." Neutral vessels, therefore, were only
to be stopped for breaking blockade, or when carrying contra-
band of war to the enemy, or on enemy account, official
despatches, or soldiers or sailors. In these cases both the ship
and cargo were declared to be confiscable, unless the contraband
should be less than three-fourths of the whole cargo, in which
case the contraband only was confiscable.

There appears to have been no attempt to come to an agree-
ment on this point, as under English maritime law the ship
is not confiscated on account of her cargo, unless she belongs
to the owner of the contraband. It would seem as if the general
principle had been expressly asserted, in view of the discussion
which had taken place with regard to, and as a direct denial
of, the Enghsh " Rule of 1756."

The other articles dealt with the " effective blockade " and
its violation (Art. 7), the definition of contraband (Art. 8), and
the recognition of the right of convoy (Art. 14). In none of these
cases was there a similarity between French and English practice,
nor apparently had there been any attempt to arrive at an
agreement.

The Answer of the United States :
First Marcy Note.

On receipt of the Declaration the United States Govern-
ment sent, on the 28th April, a formal acknowledgment in what
is known as the " First Marcy Note." ^ It expressed the Presi-
dent's satisfaction that " free ships make free goods, which the
United States has so long and so strenuously contended for as
a neutral right, and in which some of the leading Powers of
Europe have concurred, is to have a qualified sanction by the
practical observance of it in the present war by both Great
Britain and France — two of the most powerful nations of

1 Docvunent No. 10 A. * Docviment No. 10 B.

' Document No. 8 J.

The Declarations to the Neutrals 81

Europe." The sincere gratification at the Declaration would
have been enhanced if Great Britain had announced that she
would observe it in every future war. The unconditional
sanction of the rule by Great Britain and France " would cause
it to be henceforth recognised throughout the civilised world
as a general principle of International Law." The same con-
sideration which had induced the concession in the present war
— the desire to preserve the commerce of neutrals from all
unnecessary obstruction — would, it was presumed, have equal
weight in any future war. With the object of settling the
question once and for all, so that it should never again be called
in question, the United States suggested that the Powers should
unite in a declaration that it should be observed hereafter as
a rule of international law. The President was also pleased to
observe that Great Britain did not intend to bring into question
during the war the exemption of neutral goods on enemy ships
from seizure. Finally, the United States, while claiming full
enjoyment of these rights as a neutral Power, would observe the
strictest neutrality towards each and all the belligerents.

A similar but shorter note was sent to the French Govern-
ment on the 23rd May. As France was already an adherent
to the " free ships free goods " principle, a homily on the im-
propriety of the opposite practice was not required. The
paragraph in the Note to Great Britain referring to the freedom
of neutral goods on enemy ships was out of place, for the seizure
of such goods had never formed part of her maritime law. For
the sake of consistency, a homily on the impropriety of this
practice might have been addressed to France.

It may also be noted that the statement that the United
States had " so long and so strenuously " contended for the
freedom of enemy goods on neutral ships " as a neutral right "
is not quite consistent with the fact that in the Jay Treaty ^ the
opposite is expressly recognised ; and from the long period of
contention for " free ships free goods " must be omitted the
time when President Jefferson emphasised, in answer to the
complaints of France, the fact that it depended solely on mutual
agreement and could in no sense be regarded as a right. ^

^ Treaty between Great Britain and the United States, 19th Nov. 1794,
art. xvii. (De Martens, vi. 338: (2nd ed.), v. 642).
» See p. 34.

82 The Declaration of Paris

VII

Mr Phillimore^s Motion, Uh July 1854.

The issue of the Declaration to the neutrals inevitably aroused
the fears of those who believed that England's position as a
maritime power rested in large measure on the right which had
been abandoned. The Declaration, though it professed only to
suspend the exercise of the right during the war, might after
all prove to be the prelude to permanent abandonment.

On the 4th July Mr J. G. Phillimore moved in the House
of Commons, in studiously moderate language,

that however, from the peculiar circumstances of this
war, a relaxation of the principle that the goods of an
enemy in the ship of a friend are lawful prize, may be
justifiable, to renounce or surrender a right so clearly in-
corporated in the Law of Nations, so firmly maintained by
us in time of greater peril and distress, and so interwoven
with our maritime renown, would be inconsistent with the
security and honour of the country.

The terms of the motion exactly fitted the situation. Even
those who regretted what had been done, not knowing how it
had been done, were willing to admit that the Government had
found itself at the outbreak of hostilities in a difficult position.
But the transition from the defence of the Riga despatch to
the adoption, even temporarily, of Mr Milner Gibson's theories
had been too abrupt not to make them fear for the future.
He had made no secret of the desire of the Philosophical Radicals
to see the practice of seizing enemy goods on neutral ships
permanently abandoned. Lord Clarendon had lifted the veil
just high enough to raise the suspicion that he might have
become a convert. Some had dwelt on the danger of offending
the neutrals, especially the United States ; they thought it
likely that the neutrals of their generation might emulate the
action of the Armed Neutralities. There was the possibility
that the Government might be disposed to take the easy path
of concession. Seeing how little the public then knew, the
motion was well conceived. On the one hand, it was right that
the nation should understand ; on the other, it would enable the
Ministers to explain the difficulties of the situation, and, if they
were so minded, take the nation into their confidence.

The task of defending the action of the Government was
assigned to Sir William Molesworth, First Commissioner of Works,

Mr Phillimore's Motion, 4th July 1854 83

the " accomplished leader of the Philosophical Radicals," who
was supposed to have paid much attention to the subject, and
he spoke through thirty-four columns of Hansard. He admitted
that the common practice of belligerents had been to treat the
goods of an enemy on the ship of a friend as lawful prize ; but
the reason was that " in war, passion and hatred and seeming
necessity, and the fancied interests of the moment, are apt to
determine the actions of combatants ; and powerful belligerents,
relying on their might, oftentimes set at defiance the best-
established rules of war." Biit the merits of the maxim " free
ships free goods " had been, he asserted, conceded by its recogni-
tion in so many treaties, even by Great Britain, during the two
previous centuries. Developing this thesis, he made an elaborate
analysis of the different treaties, and drew from it the conclusion
that the tendency of national opinion was in its favour.

I do not propose to dissect this analysis ; a more careful
and more accurate study of the treaties in which the maxim
had been adopted, as well as of those in which it had not been
adopted, had been published in 1801 by Robert Ward at the
request of the then Foreign Secretary, Lord Grenville.^ His
conclusions were radically different from those of Sir William
Moles worth. There is only one comment necessary on this part
of the speech : it is a pity it was not preceded by a study of
Robert Ward's book.

It is, however, of great importance to point out the funda-
mental error into which Sir William Molesworth fell, and into
which all advocates of " free ships free goods " fall. They
assume that the principle is " adopted " because a provision
agreeing to it for a very limited purpose is to be found in some
treaties, is in fact included in the treaties concluded by Great
Britain with France, Holland, Spain, and Portugal. The prin-
ciple that the neutral flag covers enemy goods, that is, pro-
tects them from seizure, can only be adopted by a country when
it admits it as of universal application, and incorporates it un-
conditionally into its general maritime law. " Adoption " of
a principle means that its acceptance is not made subject to
any condition ; the question whether other countries accept it
too is immaterial. England adopted Free Trade ; Sir William
Molesworth endeavoured to prove that she had also adopted
" free ships free goods." Thus, even in this earliest attempt
by the Philosophical Radicals to substantiate their case, their
weakness in argument was apparent. Putting all ulterior
motives on one side, France adopted the principle in this sense

1 Reprinted in the series of English Classics on " The Rights of Belli-
gerent and Neutral."

84 The Declaration of Paris

in the Reglement of July 1778/ on which so much turned during
the American War of Independence. Further, from the nature
of the maxim " adoption " must mean adopted as a belligerent.
Adoption by any number of neutrals carries the case no further.

A more limited form of adoption is where by treaty two
countries agree that if they go to war with one another — " ce
qu'^ Dieu ne plaise," as the treaties say — ^then their goods
respectively shall be free on neutral ships. This is a concession
by each party to the other, as a potential enemy ; but it
satisfies one condition of adoption because, though not applic-
able to all wars, it is applicable in the specified wars, through
this potential enemy, to all neutrals. I doubt whether such
an article is to be found in any of the treaties concluded
before the Armed Neutralities.

The agreement which is commonly found in the treaties is
quite different, and amounts to no more than this : if either of
the contracting parties should be at war with a third State,
then the other, remaining neutral, may continue to trade with
the enemy, may even carry his goods " free." To assert that
this form of agreement, which is a privilege granted only to
one prospective neutral, recognised the principle, or is even
based on it as a principle, is a misuse of language. And the
case can be put no higher.

The main point of Sir William Molesworth's argument was
that England had accepted the principle, because she had
agreed to it in this reciprocal form in the treaties mentioned
above. This point will be more fully dealt with in due course ;
but it is necessary to say at once that the statement is a com-
plete perversion of the facts of history. In the first place, it
ignores the fact that in some treaties the agreement, either by
omission or by express stipulation, was in precisely the opposite
sense, was a recognition of the practice of seizing enemy goods
on neutral ships. In the second place, it is misleading even
in regard to those treaties in which the principle was included.
When England did accept it, it was always as part of a bargain,
and always when a political as well as a commercial alliance
was in negotiation — except in the case of France. The idea
that it was accepted generally and unconditionally in the com-
mercial Treaty of Utrecht between England and France in 1713,
on which so much emphasis is always laid, is entirely mythical.
It had already been accepted in 1677 in the Treaty of St
Germain-en-Laye, and then for a very specific purpose — in order
to obtain a relaxation in favour of English vessels from the

* Printed in the Documentary History of the Armed Neutralities.

Mr Phillimore*s Motion, 4th July 1854 85

severity of the French law, which not only condemned enemy
goods on board neutral vessels, but also the vessel as a penalty
for carrying them. Further, in view of the maritime law then
existing, the true version of what happened in 1677 is that both
countries adopted this principle. The provisions of the Treaty
of Utrecht were no more than a renewal of the agreement
of 1677.

Yet even this is not the limit of Sir William Molesworth's
mistakes. He agreed that " free ships free goods " was almost
invariably accompanied by the other principle, " enemy ships
enemy goods." The Powers that accepted the former rule
generally stipulated, he said, that neutrals should pay for the
lenity of that rule by the confiscation of their property when
found on board enemies' ships. But, he maintained, there was
no logical connection between the two rules other than " the
jingling of a verbal antithesis." His excursions into the region
of international commercial policy led him completely astray.
There is an intimate connection between the two rules ; the
Jingling antithesis was only adopted as a convenient method of
statement. The two rules are based on the principle that the
flag is to determine the right of belligerent seizure, not the
ownership of the property seized. And there is a deeper
principle connecting the seizure of neutral goods on enemy
ships with the seizure of enemy goods on neutral ships ; they
are both methods of preventing neutrals giving assistance to
the enemy.

Sir William Molesworth was wrong in his principles ; he
was still more wrong in his history. He ventured to assert
that the Armed Neutrality of 1780 attained its object ! How
wrong he was the volume in which the story of that League
will be told at length will demonstrate.

The important part of the speech was, however, the con-
cluding statement : — " We have not renounced or surrendered
any belligerent right appertaining to us by the Law of Nations.
. . . Her Majesty did not renounce nor surrender any of her
belligerent rights. For I need hardly assure the honourable and
learned gentleman that to waive for the present a right, and
to surrender it, are two quite distinct things."

" To waive is not to surrender " summed up the defence of
what had been done at the opening of the war. Did it really
express the intention of the Government ? Lord Clarendon had
confided to Lord Shaftesbury his desire to alter the law per-
manently. Mr Milner Gibson had boldly advocated this per-
manent change. Was Sir William Molesworth in the dark as
to what his friends thought on the subject ? It is a question

86 The Declaration of Paris

of conscience which I shall not attempt to answer. But this
may be said — if anyone will read through that lengthy speech,
he will find it difficult to connect the concluding sentence with
the very deliberate opinions which preceded it.

Mr Robert Phillimore pointed out to empty benches that
the Declaration of the Government was inconsistent with Sir
William Molesworth's speech. Instead of talk about " waived
rights," there ought to be, as that speech showed, an apology for
wrongs formerly committed. That was a prophetic utterance,
as we shall presently see ; but the House cared neither for this
nor for Mr Phillimore's demonstrations of Sir William Moles-
worth's historical inexactitudes. He pleaded special knowledge
of the subject ; he showed that if Sir William was right, Lord
Stowell must have been wrong ; but he was heard with im-
patience, and the House was counted out at 9.45.

i855

The Debates in Parliament—Trading with the Enemy-
Land Transport through Prussia.

The Declaration to the neutrals had been accepted by all
parties as inevitable : the public was mainly concerned with
its consequences ; on the one side, as they affected the successful
prosecution of the war ; on the other, as they affected trade.
The debates in 1855 were confined to the economic side of the
question.

It seems to have been admitted that the blockade of the
Black Sea was most unsatisfactory. Delay had been caused
by further negotiation as to details with France. When orders
were at last sent out, the English and French admirals proposed
to establish the blockade by a squadron stationed at the entrance
of the Bosphorus. But doubts were raised at home as to its
legality ; and, after more delay, it was decided to be " illegal,"
and the admirals were ordered to blockade the Black Sea ports
individually.^ From one cause and another the blockade was
only notified on the 1st February 1855, was then postponed till
the 14th, and not finally instituted till some days after. Mr
Cardwell, speaking on the 20th for the Government, described
the state of affairs as due to " inevitable remissness." The Sea
of Azov was, so it was said, not blockaded.^ The blockade
of the Baltic had, however, been carried out effectively ; but it
had been nullified by the action of Prussia.

King Frederick William's vacillation over his neutrality
continued after the commencement of the war, till the Czar's
influence prevailed on his brother-in-law to take up a definite
attitude. Between them a very perfect system of transit of
goods from Russia through Prussia to England was devised.

^ Document No. 13.

* The Sea of Azov was blockaded on the 3rd March; see "Blockade
Notifications," Document No. 12.

88 The Declaration of Paris

Russia developed her interior communications " to a degree of
perfection that could scarcely have been anticipated " by means
of very efficient roads to the Niemen and the Vistula, and to
the Prussian frontiers generally. Prussia on her side offered a
special inducement to the traders to adopt this route by abolish-
ing her land import duties, and reaped great benefit herself by
making a railway to Memel, just across the frontier. The result
was that the roads were overflowing with Russian commerce,
and vast stores of Russian produce, tallow, hemp, flax, and
Unseed, flowed to the Prussian port, whence they were shipped
on board neutral vessels to England. The blockade of the
Baltic potts was thus completely neutralised. A curious state
of affairs, which, if tolerated, would put in jeopardy most of
the fundamental principles on which the effective waging of
war depends : such vital principles as the prohibition of trading
with the enemy ; the doctrine of " continuous voyage " ; it
raised the merits of " free ships free goods " and the value of
blockades ; and generally the relations of political economy
with war.

On the 20th February 1855, Mr R. P. Collier moved for a
return of Russian exports from Archangel to England, and
advocated further restrictions, suggesting the application of the
" Rule of 1756." On the 6th March Lord Berners sought in-
formation concerning a consignment of lead entered for ship-
ment to St Petersburg via Hull and Memel, and commented
on the increase of Russian goods imported into this country.
" The Government," he said, " ought exphcitly to avow the
policy they intend to adopt towards the nations with which
we are at war, and likewise towards nations which regarded
themselves as neutrals." On the 27th April the Earl of Albe-
marle drew attention to the subject, and on the 15th May
moved in the Lords that " in order to bring the war with Russia
to a successful termination, it is necessary to restrict the trade
with that country by more efficient measures than any which
have hitherto been adopted."

There was a singular want of frankness on the part of the
Government in dealing with Mr Collier's suggestion that the
" Rule of 1756 " should be relied on. It is conceivable that
there might have been some objection to referring to the fact
that the Cabinet themselves had endeavoured to introduce it
into the Declaration to the Neutrals, but had withdrawn it in
consequence of French opposition. But at least this might have
been said, that the question had received due consideration by
the Government, and that the operation of the Rule had been
suspended by the Order in Council of the 15th April 1854.

The Debates in Parliament, 1855 89

All the questions raised in the three debates centre round
the attitude of Prussia. Here there was no action taken by a
neutral merchant which his Government undertook to defend ;
it was action taken by a neutral Government itself in order
to facilitate the trade of the enemy. It is called " unneutral
service " when the trade thus officially fostered is with other
neutrals ; a new name had to be devised, new principles to be
established, when it was with the subjects of the belligerent.
This state of affairs had been foreseen even in the early days of
the war ; for, in the debate on the Riga despatch, 17th March
1854, it was stated that preparations had then already been
made for evading the blockade by land transport through
Prussia. It seems that even contraband of war was allowed
to pass through to the enemy. For reasons of uncertain policy,
which will presently appear, no serious effort had been made
to grapple with the situation. Moreover, the question was so
full of practical difficulties that nothing but the sternest purpose,
backed by clear policy, could deal with it effectively.

We get back to the primitive facts underlying the whole
question. When the subject of a neutral State sends contra-
band by sea to the enemy, the belligerent remedy, seizure and
confiscation, arises because the ship which carries it is at large
upon the ocean. The. existence of the remedy depends on the
possibility of enforcing it. But when it is sent by land across
neutral territory, the belligerent is powerless to prevent it by
active measures. He cannot enter the territory of the country
which is in a state of neutrality with him to prevent its subjects
trading with his enemy.

If the neutral Government lends a hand, as by allowing the
transit on State railways, it is officially assisting the enemy,
and a clear breach of neutrality. But remedies are not always
so clear as the breach. There are practically only three : pro-
test, rupture of diplomatic relations, war. Protests are usually
met by assurances ; and with assurances, even if there is no
prospect of fulfilment, the belligerent often must re§t content.
The British Government rested, rather hopelessly, content
with Prussian assurances. Lord Granville, in answer to Lord
Berners, said : " Very early in the war application was made to
the Court of Prussia to prohibit the transmission of articles
contraband of war through that country to Russia, and an
assurance was given that the Pi-ussian Government would do
their best to comply with the request — an assurance which,"
he was afraid, " had not been very perfectly complied with."
However, the first assurance not having resulted in any amend-
ment, a renewed assurance was given ; the Prussian Govern-

90 The Declaration of Paris

ment " had expressed an intention of rendering more effectual
the means in her power of preventing such traffic." Restoration
of the land import duties and shutting down the new railway
were the only effectual means of preventing it, and neither of
them was adopted.

Lord Granville's answer referred only to the facilities for
transit of contraband through Prussia ; he did not deal with
their peculiar feature, that they enabled the British subjects
to trade with the enemy. It would appear that the omission
was deliberate. Lord Granville indulged in some very vague and
not very relevant remarks about the " very considerable con-
cessions in our old interpretation of the rights of belligerents "
which had been made, and expressed a hope " that no attempt
would be made to revert to our ancient practices." He then
referred to the Berlin and Milan Decrees as examples of in-
effectual attempts to keep enemy produce out of a belligerent
country, and suggested, by way, it must be presumed, of showing
how ineffectual our ancient practice was, that if this enemy pro-
duce were sold to a neutral it " would have put it entirely out of
the reach of our cruisers either in neutral or in our own vessels."

Having demonstrated the ineffectiveness of everything to
stop the trade. Lord Granville added that it was nevertheless
contrary to the wish of the Government that the blockade of
the Black Sea should be ineffectual ; but, as a matter of fact,
that also came within the general ineffectiveness, for " it
turned out to be impossible to establish such a blockade, and
that was the reason why the imports from Russia to this country
had been so great." Nevertheless, a recent article in the Revue
des Deux Mondes,^ he intimated, showed that the injury to
Russian trade had been great.

If anything could be derived from such a very incoherent
statement it was this : the Government, while making a show
of stopping direct trade between British merchants and the
enemy, intended to allow that trade when it was indirect.

This policy tended to encourage British traders in violating,
or at least to find excuses for them when they had violated,
the ancient law of war, which forbids trading with the enemy.
The Earl of Albemarle pressed the point very strongly. To
trade with the enemy was a violation of the common law ; was
an infringement of the statute of 25 Edward III., which made
it treasonable " to give aid and comfort to the King's enemies
in this realm or elsewhere " ; to sanction it was to conduct
war upon peace principles. Two-thirds of the goods which were

^ See Chapter IV. of " 1855," where this article is referred to.

The Debates in Parliament, 1855 91

carried by the transit trade through Prussia were intended for
British ports, and nearly all the money with which that trade was
carried on was British money. It would not have been worth
while for Russia to have incurred all the expenses of creating
the new roads merely to carry the remnant of the trade which
was not British. The policy of the Government, therefore,
furthered Russia's object, and enabled her to sustain her national
credit. This was the direct consequence of the Order in Council
of the 15th April. It was asserted that no British merchant
had infringed the law until, three weeks after the declaration
of war, the Order in Council had authorised it. The blockade
of the Russian Baltic ports was illusory, because the goods were
brought to Memel and carried thence under the neutral flag to
England. " If Prussia had supplied the enemy with arms and
munitions of war. Her Majesty's Government had supplied him
with those sinews in the shape of £10,000,000, to be paid for
exports from his country." The Government itself was aiding
and comforting the King's enemies.

If the evasion of the Baltic blockade profited Russia, it
certainly benefited Prussia, and it was no wonder that she
wished to preserve her neutrality ; no wonder that the war
was exceedingly popular with her people.

The virtue of the old law against trading with the enemy was
thus put directly in issue, and the claims of political economy
above the necessities of war. The Government had set them-
selves deliberately, in the words of Sir William Scott in the
Maria,^ " to introduce a state of things not yet seen in the world,
that of a military war and a commercial peace."

But the Government had not only set at defiance the ancient
common law, they had undermined the doctrine of " continuous
voyage," which the Courts had expressly devised to deal with
indirect trade with the enemy, carried on in such a way as to
avoid the risk of the direct trade. The facts of the Prussian
transit trade differed in no way from the facts of the celebrated
case of the Essex,^ except in being more flagrant.

How did the matter stand on the renewal of the war with
France in 1803 ? In regard to trade with the enemy's West
Indian colonies, we had waived our right to seize enemy produce
going direct to the United States. The Americans could not
carry their West Indian cargoes direct to Europe ; they could,
however, trade with the enemy from their own ports in goods
which were their own property ; all that was necessary was to

1 1 C. Rob., 380.

" Referred to in Sir William Grant's judgment in the William,
5 C. Rob., 385.

92 The Declaration of Paris

import the goods from the West Indies and then send them on to
Europe. The trade-winds determined the courses of saihng ships,
and lent an air of reality to these ingenious proceedings. James
Stephen, in 1805, wrote in his pamphlet, War in Disguise : ^

Such is the position of the United States, and such
the effect of the trade- winds, that European vessels, home-
ward-bound from the West Indies, can touch at their ports
with very little inconvenience or delay ; and the same is
the case, though in a less degree, in regard to vessels coming
from the remotest parts of South America or the East
Indies. The passage from the Gulph of Mexico, especially,
runs so close along the North American shore, that ships
bound from the Havannah, from Vera Cruz, and other
great Spanish ports bordering on the Gulph, to Europe, can
touch at certain ports in the United States with scarcely
any deviation.

The Prize Courts, however, countered the practice of the
" broken voyage," re-enforcing the doctrine of " continuous
voyage " by the " common stock " principle. Only if enemy
goods, imported into a neutral country, had passed into the
" common stock " of that country, could they lose their enemy
taint ; having thus become neutral property, then only could
they be freely re-exported to a hostile State.

Hence arose another and still more ingenious practice : the
cargo was landed at a United States port and re-loaded im-
mediately. Further, the landing of the cargo was given all
the appearance of a bona-fide importation by the payment of
import duties ; and the Customs system of rebate or drawback
facilitated the re-export. In the case of the Essex the duties
amounted to $5278 ; the drawback was $5080.

On this ground the Prize Court held that the cargo had
not gone into the common stock. The test originally accepted;
that payment of duty implied bona-fide importation, was found
to be insufficient to check the practice ; and when it was proved
that they had only been nominally paid, the cargo was
condemned.

The analogy between the Essex and the Prussian land transit
lies in this. The shippers availed themselves of the benefit of
the law of the United States ; " The duties were paid or secured,
according to law, in like manner as they are required to be
secured on a like cargo meant for home consumption ; when
re-shipped, the duties were drawn back with a deduction of
8| per cent, on them, as is permitted to imported articles in
all cases."

* Reprinted and edited by the author of this study in 1917.

The Political Economists' Theory of War 93

Mahan criticises the first seizure on the ground of surprise,
but is fully answered by Sir William Grant in the William.^
Otherwise he is of opinion that the decision was sound in
principle. There was no suggestion that the United States
Government were conniving at the action of the shippers.
The law of which they had taken the benefit was the ordinary
law of the country. But the action of the shippers brought
about condemnation in the Prize Court. In the case of the
land transit through Prussia, the Government of that country
had deliberately altered the Customs law to facilitate it — the
breach of neutrality was clear, and the British Government
acquiesced !

The Political Economists^ Theory of War.

Behind the Government were the political economists with
their notion that war must be waged in such a way as not to
interfere with trade ; that a war for arms and a peace for
commerce could coexist. The Ministers had woven the old
principle and the new ideas into an inextricable tangle ; the

^ "... It has, I tinderstand, been said that our departure from that
supposed rule in the case of the Essex was a svtrprise upon the merchants
of America, who had by our former decisions been led to believe that proof
of landing and payment of duties in America would in every case be held
absolutely decisive of the legality of the voyage.

" By the original evidence the landing of the cargo at Marblehead
was proved ; it was also in proof that the duties had been secured according
to law — so the owners swore, so the custom-house certified. It was to
be supposed that duties which were secured were one day to be paid,
and it was doubtless meant to be so understood here ; for the fact was
suppressed that at the moment when the certificate issued from the custom-
house, and the oath was made by the owners, a debenture had been granted
which in effect extinguished almost the whole of the duties that had been
previously secured. Here was what is now said to have been by us held
conclusive evidence of importation. But what did we determine ? That
the importation was not sufficiently proved, and therefore we directed
further proof of it to be made. Could any American, who at all attended
to the proceedings of this Court, be really surprised by our again deciding
a twelvemonth afterwards that such evidence was not conclusive ? Yet
this effect, I mean of surprise, is ascribed to our decision in the Essex, in
May 1805.

" On the whole, I trust I have demonstrated that we did not in the
case of the Essex, and that we do not in the case now before us, depart
from any principle which we have ever adopted. The application to this
case of the principles on which we really have proceeded has been already
shown. The consequence is that the voyage was illegal, and that the
sentence of condemnation must be affirmed." — (5 C. Rob., 385.)

94 The Declaration of Paris

political economists were ready with their theories to unravel
it. Lord Granville's excursions into this unfamiliar region had
produced no argument of greater stability than the fatalist
remark : If our own people are not allowed to import enemy
goods, the neutrals will ; then our own people will sell their
goods to the neutrals, and so get them home : much better
let them do it themselves. Mr Ricardo, son of the eminent
economist, was equally fatalistic : "If the Russians wanted to
sell their produce, and the Prussians had an interest in allowing
it to pass. Englishmen would buy it whether that produce were
Russian or not." Mr Cardwell was sunk in the depths of official
despondency : " Depend upon it, means of evasion would be
found to follow every enactment you might impose." We had
travelled a long way from the stern lecturing of the Riga despatch,
and the careful answer contained in the Emerson Tennent
letter to the merchants' conundrums.^ Only Lord Clarendon
struggled to keep up a bold front of being consistent with in-
consistency. Lord Duncan had accompanied a deputation to
the Foreign Secretary, who had assured them, with grave cir-
cumlocution, that '- however anxious he might be to maintain
the trade of the country, he thought it right to say that, in the
position he occupied, he should feel it incumbent on him to take
every means in his power to vex, to harass, and to annoy the
great enemy with whom we were at war."

Various methods had been suggested for counteracting the
land-transit trade. Licences were banned, though without any
clear perception of the reason which had led to their abuse in
the Napoleonic Wars. Mr Cardwell exclaimed exultingly : " No
privileges have been granted, no benefits conferred, by licences ;
there have been no favoured traders, no unscrupulous traders,
but all have been dealt with alike." Mr Cardwell had for-
gotten that before the declaration of war the Government had
announced that they were " very nearly in a position to deter-
mine the principle on which we will allow licences." ^ " Certi-
ficates of origin " were laughed out of court. Mr Mitchell had
suggested, in favour of their adoption, that " it was notorious
that hitherto no tallow had ever been shipped from Prussia,
therefore our Consuls would be pretty well justified if an applica-
tion were made for a certificate in the case of tallow, in suspect-
ing its origin." But, said Mr Ricardo, seeing that flax and
tallow were the produce of Prussia as well as of Russia, the
suggestion was unpractical. " They could be supported by
affidavits " : but everybody knew, experience in former wars

^ Document No. 4 (4). • See p. 47.

The Political Economists' Theory of War 95

had indeed shown, that when an affidavit was wanted an
affidavit was forthcoming — at a price. Moreover, manufactured
articles, by the Customs law, are treated as the produce of the
country of manufacture, and a very slight process was sufficient
to give them that character. Russian flax combed in Prussia
became Prussian flax : Russian tallow melted in Prussia became
Prussian stearine ; or even, without melting, a ladleful of
Prussian tallow cleverly introduced into a cask of Russian
tallow, by a process with which Mr Ricardo was familiar, would
immediately convert it into Prussian tallow. Therefore it was
manifest that if the import of these commodities from Russia
were prohibited, it would at once, in the ordinary course of
commerce, create a large manufacturing trade in Prussia.
Indeed, the Prussian merchants need not go to so much trouble
and expense ; they had only to keep the Russian produce for
Prussian consumption and send on their own in place of it.
And then again, if we were clever enough to stop the exports from
Prussia, it would be perfectly simple to get the Russian produce
sent through Holland and other continental countries. All the
tricks that the Courts had for so long struggled against were to
come into their own again. The neutral merchant is generally
supposed to be exceedingly ingenious in inventing devices for
evading our methods of preventing trade with the enemy : ac-
cording to the political economist, the British merchant, even
when his country is at war, is as bad. The idea of imposing heavy
import duties on Russian produce was also suggested and rejected.
Heavy duties and rigorous blockade, which stops egress as well
as ingress, could not coexist with any pretence of logical principle.

That was Lord Derby's view ; but it was weighted with
heavier argument. The principle advocated, he said, in the
debate of the 15th May, is, " that you must not raise by financial
restrictions the price of Russian produce in this country — that
you must not check Russian trade — but that you must foster
and encourage the commerce with that country in spite of the
war. Then, away with your blockades at once ; do not let us
go to the expense of blockading — or let us hear no more of the
argument that you cannot prevent Russian trade, and that you
ought not if you could."

It is difficult to get at the real facts of this part of the case
in view of the conflicting statements which were made. The
Earl of Albemarle asserted that the Russian products could be,
and were being, easily obtained from other sources. Tallow,
about which so much trouble had been made, was really of no
importance, as we only obtained a tenth of our supply from
Russia, and this could be found elsewhere ; and to stop that

96 The Declaration of Paris

supply would be a real loss to Russia, because her trade was
very limited. Then again, excellent substitutes for Russian
flax had been found in India. The increased cost was declared
to be a fatal objection. Lord Albemarle asserted,^ however, that
the fact was that they had been discarded when the merchants
discovered that Russian fibre was still easily obtainable.

The ground thus cleared, the political economists boldly
laid down their doctrine — that when we are at war with a
country from which our manufacturers obtained their raw
material, they must be allowed to continue getting it from the
enemy in spite of blockades, and in spite of the benefit which
the enemy obtained from that trade : in other words, that
raw materials must be exempted from the law which prohibited
trading with the enemy.

This curious perversion of ideas is well illustrated by Mr
Cardwell's answer to Mr Mitchell, in which he attempted to
fuse the benefit and the damage which would result to the
enemy by this doctrine. He denied that the blockade had
been ineffectual ; on the contrary, he had reason to believe
that the Russian manufacturers " have suffered materially by
your being able to put upon Russia, by means of your blockade,
that very pressure which my honourable friend is so anxious
to induce you to put upon Great Britain, namely, to prevent
the supply of raw material with which our manufacturers are
supported." Then followed statistics to show that the blockade
had not been ineffective. " I think," he added, " it is surprising
that so great an effect should have been produced in so short
a time ; for you will not forget that these are the results of
a blockade as yet [20th February 1855] very imperfect, and
that the advance of British capital by which in times of peace
the trade of Russia is carried on had not yet been discontinued."

These were the advances which, even in December 1853, Lord
Clarendon had recommended the merchants to discontinue.^

Emphasis was laid on the specific application of the benefit
of this economic conduct of the war to the import of flax seed,
of which large supplies were received from Riga for sowing in
Ireland, and on which the Irish linen industry was said exclusively
to depend. The linen trade of this country was nearly equal
to the whole external trade of Russia, and, the idea of using
substitutes being rejected, the most serious inconvenience would
have resulted if the war had been allowed to stop the import.^ .

So the insoluble problem — how to damage the enemy
without inconveniencing ourselves — was continuously debated.

» On the 15th May. « See p. 41.

The Political Economists' Theory of War 97

Cautious men like Lord Grey took the view that it was a
dangerous and mistaken policy to attempt to put any further
restrictions upon the trade of the world for the purpose of
injuring the enemy. Bolder spirits like Mr Ricardo declared
that blockades were " obsolete and useless." But the net
result of all the talking must have somewhat disturbed those
who knew what the practice of war was, and what the desire
of the neutrals. It was the discovery of a new virtue in the
maxim " free ships free goods," which its authors avowedly
never dreamed of, that it enabled the subjects of a belligerent
to trade freely with the enemy ; and though by the Order in
Council of 1854 ^ no British vessel was allowed " under any cir-
cumstances whatever " to enter or communicate with any port
of the enemy, yet their goods might be laden on neutral ships.
As to those Englishmen who would buy raw material whether
it were Russian or not, "if," said Mr Ricardo, " the maxim
facilitated their purchases, so much the better for them " I

To criticise such reckless methods of solving the problem is
not to deny its difficulty, which has perplexed many countries
at war. 2 The historic example in which the law of war was set
aside in order to enable war to be carried on, is the deliberate
importation of cloth from England in order to clothe the French
armies, first in 1797 by the Directory, and again in 1807 by
Bonaparte.

The Council of Five Hundred in 1797 sent a complaint to
the Directory " relative to English merchandize which has been
run into France." ^ The Directory replied, admitting the im-
portation through a Prussian merchant (on the security of the
diamonds of the Republic) of thousands of ells of blue and red
cloth, serge and white shalloons, and woollens, for clothing the
soldiers. The message dwelt on the difficulty of obtaining these
materials in France on credit for the most pressing needs of the
troops. The opportunity which had arisen of procuring them
from abroad, on terms of payment which the French merchants

1 Document No. 9 (8).

* But there is another and a better way — self-help, which we have
followed during the present war. In the autumn of 1914 Great Britain
found herself exceedingly hard pressed in regard to various essential
munitions of war which, hitherto, she had procured from Germany
and other foreign countries. To take one of many instances, glass for
optical instruments of precision for the forces — the eyes of the fleet, the
army, and the flying service. Instead of trading with the enemy, or
trying to do so, we set to work through the various departments of the
Ministry of Munitions to make new or develop old industries. The results
have been amazing. The discovery of the means of procuring potash,
for which formerly we were almost entirely dependent on Germany, from
iron ores in the blast furnaces, is one of the industrial romances of the war.

' Debrett's State Papers, vol. vi. p. 137.

98 The Declaration of Paris

would not have accepted, had induced the Directory to sanction
these transactions, truly advantageous for the Republic, and
without which both the land and sea forces would have been
exposed to the utmost want. The remission of the duty was
necessary, because otherwise the price would have been much
higher, as the contractors, who received bills in payment, would
never have agreed to advance the money for the duty.

In 1807 the armies of Bonaparte were in a similar condition
of destitution ; leather as well as cloth had to be imported by
devious routes from England. Bourrienne, the French agent
at Hamburg, and afterwards the Emperor's faithful secretary,
was commissioned to arrange the necessary business, the Berlin
Decree notwithstanding, which, in spite of the opposition of
the Customs officers, he successfully accomplished.

L'empereur me demandait tant d'effets d'habillement pour ses
troupes, que tout ce que contenait la ville de Hambourg, et ce qu'aura-
ient pu fournir les villes de Bremen et de Lubeck n'aurait pu y sufl&re.
Je fis, avec une maison de Hambourg, un traite par lequel je Tautorisais,
malgre le decret de Berlin, a faire venir des draps et des cuirs d'Angle-
terre. Je les obtenais d'une maniere sure et a moitie priz Nos soldats
auraient eu cent fois le temps de mourir de froid s'il avait fallu observer
ridiculement le systeme continental et cette kyrielle de decrets in-
executables sur les marchandises anglaises. Le directeur des douanes
a Hambourg prit de I'humeur ; je tins bon ; mes draps et mes cuirs
arriverent ; capotes, habits, souliers, tout fut promptement con-
fectionne ; et nos soldats se trouverent ainsi a I'abri des rigueurs de
la saison. . . .

Dans ce temps, Hambourg ni son territoire n'avaient de fabriques
de drap, toute etofPe de laine etait, . . , interdite, et cependant j 'avals
dd fournir et j 'avals fourni cinquante mille capotes a la grande-armee.
Par suite d'un decret imperial tout recent, je devais faire confectionner,
sans delai, seize mille habits, trente-sept mille vestes ; l'empereur me
demandait deux cent mille pairs de souliers, outre les quarante mille
paires que je lui avals deja envoyees, . . . et je fis le commerce avec
I'Angleterre, au grand avantage des armees, qui furent bien habillees
et bien chaussees.^

These transactions were, for the English merchants con-
cerned, in breach of the common law ; for the neutral merchants,
the taking of a risk which, in common parlance, is called a
breach of neutrality. According to the theories of the Man-
chester school they were legitimate, for they were in furtherance
of the sacred cause of commerce ; according to the doctrinaire
political economists, " so much the better " for all concerned.

In the discussions in Parliament two very grave mistakes
are specially to be noticed.

The politicians drew a false conclusion from the confusion

^ Bourrienne, Memoires sur Napoleon, vol. vii. p. 292.

The Political Economists' Theory of War 99

of trade which resulted during the Napoleonic Wars. Lord
Granville pointed almost triumphantly to the fact that even
those extreme measures, the Berlin and Milan Decrees, were
powerless to prevent the Continent being flooded with English
goods. When, from one cause and another, that trading came
to an end and the merchants lost their mental balance.
Brougham's perfervid oratory compelled people to believe that
the fault lay with the Orders in Council. They argued that
because a principle pushed to its extreme limit had produced
such dire confusion, sound and unsound policy could no longer
be distinguished. They themselves confused two distinct issues,
the effect of war policy on the enemy, and its effect on the
neutrals. They did not discern the difference between the
" Licence System," ^ which was the butt of all their abuse, and
the system of licences, which is an integral part of the common
law. Mahan had not yet written his books to mal^ the matter
clear. The political economists argued from the particular to
the general. If one merchant could obtain permission to trade
with the enemy it was a privilege, of all things most hateful
to their minds. What one could obtain by express grant, all
should have as a right. And yet there were lights to hghten
their darkness. Lord Kenyon, C.J., in Potts v. Bell,^ had
expressly approved Sir William Scott's dictum in the Hoop : '
" All trading with the public enemy, unless with the permission
of the Sovereign, is interdicted." Wheaton has explained the
meaning of this power of exemption : "A material object of
the control which the Government exercises over such a trade
is, that it may judge of the fitness of the persons, and under
what restrictions of time and place such an exemption from the
ordinary laws of war may be extended." * Kent too had written
that the limitation of time is important ; " for what is proper
at one time, may be very unfit and mischievous at another
time." 6

Instead of steadying themselves on these carefully con-
sidered expositions of the law, the Government plunged to the
other extreme, which cannot be more graphically stated than
it is by the editor of Wheaton : " During the Crimean War
England and France and Russia all permitted their respective
subjects to trade with the enemy, provided the trade was carried
on though the medium of a neutral flag " ! ® Is it surprising that
a few years later, when the subject was once more discussed,

1 See " 1855," Chapter III. » 8 T.R., 548. ' 1 C. Rob., 196.

* Wheaton, International Law, 5th ed., p. 435.

* Kent's Commentaries, Abdy's edition, p. 382.
" Wheaton, op. cit., p. 438.

100 The Declaration of Paris

John Bright put his finger on the illogic of the poUcy : Why this
hmitation to the neutral flag ? If you are right, you must go
further still, and extend the privilege to the enemy flag.^

A sane, and, judged by the standard of discussion set up
in Parliament, remarkable article appeared in the Edinburgh
Review for July 1854, entitled " The Orders in Council on Trade
during War," ^ in which a defence of the Government policy
was undertaken. The facts of war and the principles of the
law of war were frankly stated, and the issue involved in all
war fairly faced — whether the loss inflicted on the intercourse
of the enemy with this country is not commensurate to the loss
inflicted on the interests which we might ourselves have engaged
in his trade ? Whether we do most injury to the enemy or to
ourselves ? Whether the advantages derived from the pressure
we may put upon him are greater than the evils and incon-
veniences by which they are purchased ?

The means of exchange were denied us — commercial
intercourse was stopped ; in striking the producers of these
articles abroad, we afflicted the consumer at home ; the
cost of war was enormously enhanced by the increased
prices to be paid for every article of consumption which
fell under these restrictions, and when these articles con-
sisted of raw material, the want of them might paralyse
the industry of the country.

That is undoubtedly the consequence of war. The problem
which is presented to every Government charged with the
conduct of war must be how to minimise its effect on the people
without minimising its effect on the enemy.

The writer's first proposition, if somewhat too weak in its
statement, is incontestable.

Starting, then, from this absolute prohibition of
trade with the enemy, when not authorised by a special
act of the Crown, it devolves upon the constitutional
advisers of the Crown to limit the application of this prin-
ciple ; and it is their duty strictly to confine it within such
limits as appear to be necessary for the public service and
conducive to the national interests. . . .

He contended that this duty had been performed by the
issue of the Order in Council of the 15th April 1854,^ which gave

» See " 1860 1862," Chapter IV.

• I have been unable to trace the authorship of this article. In spite
of what I believe to be its defects in argument, as a reasoned statement
of the other side it is well worth reading.

» Document No. 9 (8).

The Political Economists' Theory of War 101

to the intentions expressed in the Declaration to the neutrals
" a more precise form and binding authority." The Declaration
itself is described " as one of the most important and extensive
concessions yet made to the liberal opinions and growing
interests of this age," and " made by the two greatest maritime
Powers of the world, at a moment when their union rendered
them the absolute sovereigns of all seas — compelled to no
surrender of their principles, but ready of their own free will to
take those measures which they conceive to be most favourable
to the cause of civilisation and humanity." They had adopted
" the most liberal principles ever advanced by Catherine II.
or the Baltic Confederacy."

Merely to assume that these principles are " liberal " does
not answer the questions the learned author had propounded ;
it leaves unanswered the question whether they can be adopted
consistently with the successful prosecution of the war. To
preserve the supplies of raw material ordinarily obtained from
the enemy may save the country from much inconvenience ;
but the question still remains unanswered, whether the con-
venience of getting them counter-balances the damage which
would be caused to the enemy by stopping the trade. And to
some persons " liberal " principles would not sanction the
doctrine which the author approves, that the pressure we might
have been able to inflict on all classes of society in the Russian
Empire was one of the most powerful means we possessed of
crippling the Russian Government by producing a reaction of
interest and opinion against the head of it.

The critics who profess these liberal opinions assume a care
for the national interests which for some reason they deny to
the Government. The writer of this article is no exception.
He says : —

The true principle to mitigate the rigour of this part
of the Law of Nations is a more dispassionate consideration
of the rights of others, aided by a more enlightened per-
ception of our own national interests ; and we trust we may
arrive at a time when it will be acknowledged and received
as a maxim of State that the interest of the country is
best secured, not by applying the rights of war in all their
rigour to our own subjects and to neutrals, but, on the con-
trary, by circumscribing those rights within the narrowest
limits which are consistent with the effective prosecution of
hostilities.

A Government would be unworthy of its trust if it did not
admit the truth of this opinion and universally act upon it.
Acts of belligerency are in a constantly increasing order of

102 The Declaration of Paris

magnitude and severity. Rarely, if ever, is the full extent of
belligerent power exerted at the outset ; nor are the rights of
war applied in all their rigour either to our own subjects or to
neutrals till the occasion demands. The problem, ever present,
is how to exert pressure on the enemy with the least disturb-
ance of the national interests. As to subjects, the law recog-
nises that even the extreme rigour of its principle, which makes
trading with the enemy illegal, may be relaxed by the Sovereign.
That is a question of policy in the settlement of which the
magnitude of the war and the vital nature of the issues involved
must enter. But the law is so framed that, when the safety of
the State requires it, the sacrifice of the most valuable interests
may be demanded of the people. So as to neutrals, the full
belligerent right of stopping all their trade with the enemy may
well be held in suspense till the intensity of the struggle compels
its exercise. The national interest may require that our own
export and import trade with the neutrals should be preserved :
a condition of its preservation may be the tolerance of some
latitude in their trading with the enemy. These questions can
only be dealt with by means of agreements with the neutrals,
the adoption of some system of rationing them, which have
largely figured in the present war. The conduct of war involves
something more than merely putting in force acts of belligerency :
it cannot be reduced to so simple a statement. But the political
economist of that day sought to control it by reducing it, so
far as the neutrals are concerned, to a common formula — that
in all circumstances free ships must make free goods ; and, so
far as subjects are concerned, to unrestricted trade with the
enemy. He considered that the national interests are best
served by the preservation of commerce at all risks ; he ignored
the greatest national interest of all — ^to win the war.

Ill

Licences to Trade with the Enemy.

The methods adopted by the Government in the Russian war
seem to lay themselves open to criticism ; the omniscience of
the political economist is apt to irritate ; yet the nature of the
problem which had to be dealt with must not be ignored. The
great virtue of the common law of England is that its principles
are based on the working practical knowledge of the affairs of
the world which those who framed and shaped it possessed ;

Licences to Trade with the Enemy 103

and this is as true of that part of it which relates to war as to
that which relates to peace. But the old principle which forbids
trading with the enemy was directly challenged, and a strong
case of impracticability made against it. The origin of the prin-
ciple is variously described : it is said to be the ancient law of
England : it is said equally to be a maxim of the international
law o£ war, and the fathers of that law have had something
to say on the subject.

It is, however, true that when nations entered into com-
mercial treaties they endeavoured to mitigate the harshness of
the rule for their mutual benefit ; the alien merchant was not
always required to withdraw, nor was justice always denied him
while he remained and was of good behaviour. A space of
time, varying from three months to two years, was always
allowed to him within which to wind up his affairs : in one
famous treaty he was not required to withdraw at all.^ So too
a large number of these commercial treaties broadly recognised
free commerce with the enemy by the one party when the other
was at war ; thus each deliberately opened the door to indirect
trade with the enemy by its own subjects by way of the
neutral merchants of the other party.

But these were arrangements come to by agreement, and do
not affect the principles of international law, which ought, if
they are to be efficacious, to have practical wisdom behind
them. The question involved in the adoption or rejection of
such a principle as " free ships free goods " is essentially a
practical one for all maritime nations, more so for an island
nation than for any other. I have suggested that temperament
enters largely into the discussion on merits : the fighting spirit
cannot bring himself to believe that carrying goods for the
enemy can be a legitimate occupation for neutrals ; the peace-
fully inclined think otherwise, and in this year, 1855, the political
economist sided with them. The question is one for the Ad-
miralty : can the food supply of the country be maintained
by the navy if this principle is adopted ? Lord Clarendon's
belief in the iniquity of our ancient sea practice may have been
profoundly sincere : what is lacking to our slender knowledge
of his case was — Had he consulted the naval advisers of the
Crown ? and what was their answer ? 2 In the absence of that
answer, those who opposed him were justified in maintaining
that our forefathers had wisdom on their side when they

^ The Jay Treaty, 1794, between Great Britain and the United States,
Ap. 26 (De Martens, Rectieil, iv. 338 ; 2nd ed., v. 642).

* It may be noted that the naval authorities were consulted as to the
answer to Sweden in regard to the sheltering ports in the Baltic (see p. 16).

104 The Declaration of Paris

asserted that our ancient practice was essential to the safety
of the State. If, however, the Admiralty had agreed to the
change, the " barbarian " argument could have been avoided.

The political economists went to the other extreme ; they
were not content to assert that free ships should make free
goods ; and the commercialists, in their turn, were not content
to declare that what they called " private property " should be
immune from capture at sea. Both boldly decried the wisdom
of the law of war : trading with the enemy should net be for-
bidden ; it should, on the contrary, be allowed. And so " free
ships free goods " appealed to them, because it fostered this
trade, and, when pressed to its logical conclusion, must include
the freedom of enemy ships and enemy goods. They rested
their case on the necessity of maintaining the nation's supply
of raw material from the cheapest market : and the cheapest
market in that war, for certain kinds of raw material, was the
enemy's.

They ignored the fact that the old law of war recognised
the possibility of this need arising, and had provided for it.
By the constitution, just as the making of war resides in the
Sovereign, so also does the right to mitigate its severity when
the good of the State demands it. The Sovereign is em-
powered to grant licences to trade with the enemy. But,
for some, licences did not go far enough ; for others, they
stood condemned by the excess to which they had been
carried in former wars.

Licences, as " high acts of sovereignty," stand midway
between the extreme rigour of the law which prohibits all trade
with the enemy, and the extreme philosophy that believes com-
mercial peace can be maintained in the midst of war. They
are an integral part of the history of the subject ; a small space
must, therefore, be devoted to the subject, which Mahan has
handled in the broadest spirit.

A licence, he says, from its name, implies a prohibition
which is intended to be removed in the particular case. The
prohibition was against trading with the enemy ; the licence
removed it. The licensing practice was adopted by both
England and France during the Napoleonic Wars ; it was not
so much a system, as an aggregation of individual permis-
sions to carry on a traffic forbidden by the existing laws of the
authority granting them. " It was generally admitted in Great
Britain that the Board of Trade was actuated only by upright
motives in its action, though the practice was vigorously attacked
on many grounds — chiefly in order to impugn the Orders in
Council, to which alone their origin was attributed ; but in

Licences to Trade with the Enemy 105

France the taint of Court corruption, or favouritism, in the issue
of Hcences was clearly asserted."

The " Licence System " was a peculiar and extensive adapta-
tion of the principle adopted by the British Government in
1808, immediately after the Orders in Council and the alliance
of Russia with Napoleon. The numbers of licences granted rose
from 2606 in 1807 to over 15,000 in 1809, and to over 18,000
in 1810.

" The true origin of the later licence trade is to be found
in that supremacy and omnipresence of the British navy which
made it impossible for vessels under an enemy's flag to keep
the sea." Hostile owners transferred their vessels to a neutral
ownership "by a fraudulent process which received the name
of ' neutralisation.' A neutralised ship remained the property
of the hostile merchant ; but, for a stipulated price, a neutral
firm, who made this their regular business, gave their name as
the owner's and obtained from the authorities of the neutral
country all the requisite papers and attestations by which the
British cruisers, on searching, might be deceived." It was " a
regular systematic business, fraudulent from beginning to
end," which had its origin in the war of the American
Revolution in 1780, when Holland became a party to the
war, having a large mercantile tonnage, with very inadequate
means of protecting it.

In the year 1806 it was asserted that there were up-
wards of three thousand sail belonging to merchants of
Holland, France, and Spain navigating under the Prussian
flag ; and the practice doubtless was not confined to
Prussia. '' It is notorious," wrote Lord Howick, the British
Foreign Minister, that " the coasting trade of the enemy is
carried on, not only by neutral ships, but by the shameful
misconduct of neutral merchants, who lend their names
for a small percentage, not only to cover the goods, but in
numberless instances to mask the ships of the enemy." ^

The fact becoming known, British cruisers, when meet-
ing a valuable ship with Prussian papers, were apt to take
the chance of her being condemned, and sent her in ; but
even in British ports and Admiralty courts the neutralising
agent was prepared to cover his transaction. The captain
and crew of the detained vessel were all carefully instructed
and prepared to swear to the falsehoods, which were attested
by equally false papers sworn to before Prussian judges.
To this trade, it was alleged, France owed the power to obtain
naval stores despite the British blockade of her arsenals.

^ Cobbett's Parliamentary Debates, vol. x. p. 406.

106 The Declaration of Paris

The capture of vessels, the character of whose papers
was suspected, served to swell the cry against Great Britain
for violating neutral rights, induced greater severity in
the British naval measures, and so directly contributed to
the Berlin Decree and the Orders in Council.^

Further, in the development of his great onslaught on British
commerce Bonaparte had developed his " Continental System,"
and the small States of Europe were coerced into concurrence
with his policy of excluding British goods from the Continent.
It was essential that Great Britain should take counter-measures.
" She found ready to her hand the unprincipled system of
neutralised vessels, and by means of them and of veritable
neutrals she proposed to maintain her trade with the Continent."
Every neutral vessel so employed was furnished with a pro-
tecting licence which acted as a safe-conduct when she was
boarded by a British cruiser. " The vessel," it ran, " shall be
allowed to proceed, notwithstanding all the documents which
accompany the ship and cargo may represent the same to be
destined to any neutral or hostile port, or to whomsoever such
property may belong." " These broad provisions," adds
Mahan, " were necessary, for the flags flown, except that of the
United States, were those of nations which had willingly or
under duress entered the Continental System ; and the papers,
having to undergo the scrutiny of hostile agents at the ports
of arrival, had to be falsified, or, as it was euphoniously called,
' simulated,' to deceive the Customs officer, if zealous, or to give
him, if lukewarm, fair ground for admitting the goods." Such
was the Licence System, and it reduced our commerce, as Lord
Lansdowne said, " to one mass of simulation and dissimulation." ^
It provided Mr Brougham with a weapon of attack against the
Orders in Council,when he appeared for the petitioning merchants
at the Bar of the House of Commons ; but the alternatives,
which he somewhat overlooked, were either that Bonaparte's

^ The Influence of Sea Power on the French Revolution and Empire,
Admiral Mahan, vol. ii. pp. 309, 310.

2 " Our traders crept along the shores of the enemy in darkness and
silence, waiting for an opportunity of carrying into effect the simulative
means, by which they sought to carry on their business. Such a system
led to private violation of morality and honour of the most alarming
description. . . . Instead of benefiting ovir commerce, manufactures, and
resources, the Orders in Cotmcil [which were responsible for the licences]
diminished our commerce, disturbed OTir man^xfactu^es, and lessened otu*
resources." — (Lord Lansdowne, quoted in Leone Levi's History oj British
Commerce, p. 115.)

The immoral influence of the system on the nation was attacked in
Reflections on the Nature and Extent of the Licence Trade (Budd, 1811),
which was the subject of an article in the Quarterly Review for July
1811.

Licences to Trade with the Enemy 107

Continental System should prevail, or that it should fail ; and
in the end it failed,

But although the system which grew out of the normal grant
of licences, when it is considered without reference to these
alternatives, was open to criticism, the principle of licences
remains an essential part of the machinery of war. The same
principle lies at the root of the custom which allows vessels
already at sea to pass to their destination in spite of a newly
imposed blockade. It is the only method by which trade with
the enemy, if it be necessary to continue it, can be legitimately
maintained. Obviously, it must be for the Government, which
is responsible for the conduct of the war, to decide whether it
is necessary to maintain it, and to what extent.

" A licence," says Wheaton,^ " is an act proceeding from the
Sovereign Authority of the State, which alone is competent to
decide on all the considerations of political and commercial
expediency, by which such an exception from the ordinary
consequences of war must be controlled."

This brief review of the system would be incomplete without
some extracts from Sir William Scott's judgment in the Goede
Hoop in 1809.2

Licences owe their origin to the general prohibition,
which declares it unlawful for the subjects of this country
to trade with the enemies of the King without his permission ;
for a state of war is a state of interdiction of communication.
That is a law which is not peculiar to this country, but one
which obtained very generally among the States of Europe :
in former wars this prohibition was attended with very
little inconvenience, as the greater part of the countries in
the neighbourhood remained neutral, and presented to the
belligerents various channels of communication, through
which they obtained from each other such commodities as
they stood in need of. While the world, therefore, con-
tinued in that state, of course licences would be granted
only in very special cases, where it appeared that there was
a necessity to have a direct communication with the enemy ;
and being a matter of special indulgence, the application
of them was strictissimi juris.

But it has happened that, in consequence of the extra-
ordinary and unprecedented course of public events, these
licences have, in a certain degree, changed their character,
and are no longer to be considered exactly in the same light.

» International Law, 5th ed., p. 435. • Edw. 327.

108 The Declaration of Paris

It is notorious that the enemy has in this war directed his
attacks more immediately against the commerce of this
country than in former wars ; and a circumstance of still
greater weight is, that he has possessed himself of all those
places that in former wars remained in a state of neutrality.
To what part of the Continent can we now look for a country
which is not either under the actual dominion of France,
or in that state of subjection to it which operates with all
the effect of dominion ? It is a sta'te of things in which it
has become impossible for England to carry on its foreign
commerce, without placing it on a very different footing from
what its convenience required in former wars. To say that
you shall have no trade with the enemy would be, in effect,
to say that you shall not trade at all, because that commerce
which is essential to the prosperity of the country cannot
be carried on in those small and obscure nooks and corners
of Europe, if any such can be found, which are still inde-
pendent. The question then comes to this, How is the foreign
commerce of the country to be maintained ? It must be
either by relaxing the ancient principle entirely, and per-
mitting an unlimited intercourse with the ports of the
enemy, and where the ports of other nations are put under
blockade (as they are by the Orders in Council) for other
reasons than those of a direct hostile character, they become
liable to be considered and treated in like manner, so far
as the purposes of blockade require ; or it must be by
giving a greater extension to the grant of licences. As to
the relaxation of the general principle, by which an open
and general intercourse with the enemy would be allowed,
the consent of both parties is requisite to make that effectual ;
and even if the enemy permitted it, the legislature would
probably not think it proper to proceed to that length,
and for reasons, I presume, connected with the public
safety. It has, therefore, tolerated a resort to the other
mode of permitting a trade by licences, which, though
they are so denominated, are likewise, in effect, expedients
adopted by this country to support its trade, in defiance
of all those obstacles which are interposed by the enemy.
They are not mere matters of special and rare indulgence,
but are granted with great liberality to all merchants of
good character, and are expressed in very general terms,
requiring, therefore, an enlarged and liberal interpretation.

Looking to the intentions of the Government, not only
to what they are, but to what I am led to suppose they must
be ; looking to the extreme difficulty of carrying on the
commerce of the country in the struggle which it has to
maintain, not only against the power but against the craft
of the enemy ; looking to the frequency and the sudden-

Licences to Trade with the Enemy 109

ness with which he lays on or takes off his embargoes,
according to the exigency of the moment ; looking to the
various obstructions that present themselves in obtaining
vessels, in consequence of the small remainder that there is
of neutral navigation in Europe ; looking, also, to this
circumstance, that all this intercourse must be carried on
by the subjects of the enemy, that it must be a confidential
transaction to be conducted by an enemy shipper at great
risk and hazard to himself ; looking to the total change
which has taken place in the nature and character of these
licences, if that denomination is to be considered : I say,
looking to all these considerations, where there is clearly an
absence of all fraud, and of all discoverable inducements to
fraud, I must go to the utmost length of protection that
fair judicial discretion will warrant, though there may, under
such circumstances, have been a considerable failure in
the literal execution of the terms of the licence. There may
be great inconvenience in the whole system of licences, as
indeed it is scarce possible in the present state of the world
that there should not be great practical inconvenience in
any mode of conducting its commerce. That is a question
of policy, with which this Court has nothing to do. It has
only to enforce the just execution of legitimate orders,
issued by legitimate authority.

It is objected to the master that he did not produce
his licence to the captors, and that, on his arrival at Ply-
mouth he delivered certain papers and documents to his
agents there. But it is impossible not to take into con-
sideration the difficulties under which such persons labour ;
they are persons exposed to great harassments, both on the
one side and on the other. They know that they are em-
barked in transactions of great confidence and mystery
requiring the utmost care and circumspection, and they
are to pick their way in fear and silence, walking, as it
were, at every step over burning ploughshares.

While letting the world know something of the mysteries
which were essential to carrying out the " simulation and dis-
simulation " of the licence system, Sir William Scott did not
hesitate to justify it as necessary to counteract the attacks of
the enemy on the national commerce. The question has even
now something more than an historical interest, and it may be
necessary to refer to it again in the general review of the whole
subject. But for the moment, and in connection with the story
of the Declaration of Paris, the points which stand out from
this year of talk, 1855, are these : that the question of neutral
rights was relegated to a subordinate position ; that there was

110 The Declaration of Paris

no question of discussing the merits or demerits of " free ships
free goods " as the principle of international law which could
satisfy the demands of the neutrals ; that the attack was directed
against the old prohibition of trading with the enemy. " Free
ships free goods " was distorted from its accepted meaning to
foster a general relaxation of those old safeguards under the
protection of which war can alone be safely and successfully
carried on. I venture to think the position as it is described
in the latest edition of Wheaton — that subjects may trade with
the enemy as long as the trade is carried on in neutral ships —
to be an impossible one.

The Facts as described by Contemporary Writers.

It forms no part of the scheme of this book to lead my readers
through the paths of the labyrinth of political economy. My
intention is merely to state the facts, to indicate arguments
used by the political economists of the day, and to point out
very broadly how they were designed to upset the accepted
principles of war, and in great measure succeeded. Certain
other facts are material to the complete understanding of the
question, as they throw light on two most important points :
the effect of these new doctrines on the trade of Great Britain,
and their effect on the trade and general situation of Russia.

The consequences of the Prussian action will be gathered
from the vivid picture of the activities in Memel and Konigs-
berg, drawn by the Rev. Thomas Milner in his book, The Baltic :
its Gates, Shores, and Cities, quoted in Mr J. L. Ricardo's
pamphlet. The War Policy of Commerce, and referred to by
Mr Collier in the debate of the 20th February 1855. In this
pamphlet Mr Ricardo expanded the theories which he had
advanced in the House of Commons.

Two papers also appeared in the Revue des Deux Mondes
dealing with the effect of the blockade on Russia. In the first
M. Leon Faucher took a very adverse view of her internal con-
dition. This was answered by M. L. Tegoborski, who contro-
verted many of M. Faucher's facts. The former article was
referred to by Lord Granville in support of his statement
that the injury caused by the allied blockade to Russian trade,
in spite of its ineffectiveness, had been great.

The facts related by these writers have a very material

The Facts as described by Contemporary Writers 111

bearing on the questions to be presently discussed at the Peace
Conference.

From "The War Policy of Commerce," by J. L. Ricardo.
[London, 1855.]

To blockade the coast of a country having such a frontier as Russia
is a mere absurdity. Of what avail is it to seal up Reval and Riga,
and leave open Memel, Dantzig, and Konigsberg ? To guard one door
and throw open others ? What possible object can be gained — not
by preventing, but by diverting, the enemy's trade ? The roads leading
to Tilsit, Memel, and Konigsberg are at this moment encumbered with
interminable convoys, and the streets and squares of those towns are
filled with Russian caravans, which, after a few days, return with mer-
chandise for Russia. Hemp, flax, tallow, grain, and copper constitute
principally what the Russians bring, and they take back coffee, sugar,
cotton, various cloths, pewter, and, in particular, wine and olive oil.
The trade in salt has also taken a very considerable development, and
the importation of the article is estimated at not less than a million
quintals, and the price of it is at present tripled in the market of Riga.
In a single day, at the beginning of this month, at Tilsit, as many as
300 Russian vehicles, which had passed the night on the other side of
the river owing to the want of room, were counted. Part of these
convoys are at present proceeding towards Konigsberg, but the greater
part are towards Memel. The number of arrivals by water was not
less considerable, but the frost, which had set in, had interrupted all
expeditions by rivers. From Memel to Kowno, on the two priacipal
water-courses, there are more than 300 diJfferent sorts of vessels, all
with freight, and at least 130 rafts of building timber, loaded with corn,
which have been caught in the ice.

" Prussia," says the Rev. Thomas Milner,^ " neutral in the present
war, is reaping a rich harvest from it at her eastern ports, Dantzig,
Elbing, Konigsberg, and Memel ; especially at the latter, owing to the
liberal concessions of the British and French Governments to neutral
Powers. The eflEect of the blockade of the Russian ports has not been
the stoppage of the foreign commerce of the country, but the trans-
ference of it to the adjoining State as the medium ; except in the in-
stance of the export of timber and the import of coals, which are far
too heavy and cumbrous for overland transport. From St Petersburg
and Riga to Memel and Konigsberg a caravan system has been organ-
ised, and is carried on with considerable regularity. Goods for Russia,
as cotton, sugar, wines, spices, and other colonial produce, are landed
at the Prussian ports, and forwarded to their destination ; the same
waggons returning with Russian produce, as hemp, flax, tallow, bristles,
linseed and grain, for export to Great Britain, France, Holland, or
Belgium. Thus the Prussian merchants gain by the commission on
this traflBic ; and the Government profits by the increase of the
Customs' duties. One of the Custom-houses on the frontier has taken
as much as 1000 thalers a day for import duties ; and as many as 500
cart-loads of hemp and flax have frequently arrived per day at Memel.
Throughout the summer the town has presented an extraordinary

^ The Baltic : its Gates, Shores, and Cities, by the Rev. Thomas Milner.

112 The Declaration of Paris

spectacle. Every warehouse, coach-house, stable, and outhouse has
been literally crammed with merchandise ; the streets and open spaces
have been piled with it ; while upwards of 100 ships have been kept
Ijdng in the harbour, unable to discharge their cargoes, on accoimt of
all the landing places being occupied. Landlords have realised rents,
taverns and shopkeepers have obtained prices, comparable to those
which resulted from the rush of emigration to Melboiu-ne."

It is estimated that the extra cost paid on Russian produce belong-
ing to the British merchant for its transport by the Russian peasantry
to Memel is no less than £2,500,000. This is exclusive of the goods
canied to Archangel for shipment, and the loss from damage and de-
struction to them on the road, where insurance is impossible.

And while this active trade is driven on the land frontier, the
combined fleets of England and France . . . are watching on the sea-
board to destroy the commerce of Russia. . . .

The property of some few poor Finlanders has been destroyed, and
some of our own, and the pretext is, that the damage to his commerce
will put such pressure on the Emperor of Russia that he must consent
to our own terms of peace. . . .

By adopting the course with respect to neutrals which we now
follow, the commerce of Russia, as has been shown, is diverted but
not stopped. We dam it up on one side, but it flows freely out at
the other. . . .

It has been shown how futile was the attempt to blockade the
trade of Russia on the shores of the Baltic while the land frontier was
open and free.

The British merchant complains, and complains with reason, that
he has been deceived ; that he has been told that the Russian
ports were strictly blockaded, and that, having laid in a stock of the
articles he required at a high price, he now finds that the blockade did
not exist at all, and that a large amount of these articles are suddenly
thrown on the market, brought in foreign vessels, to the exclusion of
British ships. The neutral shipowner has found his vessels employed
at high rates, whereas imports of the like articles from neutral countries,
on which British ships could have been engaged, have been proportionably
discouraged.

From "Les Finances de la Russie," in "Revue des Deux
MoNDES," PAR Li^ON Faucher [August 1854].

Le commerce russe, prive des avances importantes que lui faisait
chaque annee I'Angleterre, et qui ne montaient pas a moins de 5 million
sterling, a perdu en outre ses meilleurs debouches au dehors, depuis
que les flottes combinees bloquent hermetiquement les ports de la
Baltique et ceux de la Mer Noire. Le change a baisse de plus de 20
pour 100,1 I'exportation de I'or est prohibee, les faillites se succedent
et s'accumulent sur toutes les places. Que la guerre se prolonge, et il
ne restera bientot plus un comptoir ouvert a Petersbourg. Ainsi,
apres avoir ruine le commerce et detruit le credit, Ton accepte les
proprietaires f orders en les depouillant de leurs instrumens de travail,
en leur enlevant les paysans censitaires ou serfs qui font leiu- principale

^ La valeur du rouble argent est tombee de 4 francs a 3 francs 8
centimes.

The Facts as described by Contemporary Writers 113

richesse ; mais si Ton appauvrit les proprietaires, si pour remplir les
camps on depeuple les campagnes, je demande qui paiera desormais
Timpot ?

Non seulement les ressources extraordinaires que le gouvernement
russe a fait jaillir, depuis dix-huit mois, des facultes contributives du
pays en les excedent, vont lui manquer dans les annees qui suivront ;
mais il verra et voit deja diminuer ses ressources ordinaires. . . . Le
Moniteur suppose que la guerre actuelle et le bloc us des deux mers
ameneront un deficit de 50 millions de roubles ou de 200 millions de
francs, en calculant le rouble au pair, dans le produit de ces deux
branches d'impot.

Je ne saurais estimer le deficit k un chiffre aussi considerable.
II est vrai que la presence des flottes combinees dans la Mer Noire et
dans la Baltique paralyse le commerce exterieur de la Russie, qui pour
les seuls exportations par cette double voie, excedait 300 millions de
francs ; mais on admettra bien qu'une partie de mouvement commercial
se reportera de la frontiere de mer sur la frontiere de terre, et que le
tresor recuperera ainsi une partie des recettes qui semblaient entiere-
ment perdus pour lui. Le gouvernement Russe I'a tellement senti
qu'il vient, pour attirer le commerce dans cette direction, de moderer
les droits de douane. Ainsi la necessite lui a suggere une mesiu^e tout
a fait contraire k ses precedens, et qui est une bonne operation, si on
1 'envisage au point de vue de I'economie politique.

Reply by L. Tegoborski, in "Revue des Deux Mondes"
[November 1854].

* Que le commerce exterieur de la Russie soit en souffrance par
suite de la guerre et du blocus, c'est incontestable ; mais les interets
des autres etats qui sont en communication maritime avec la Russie, k
commencer par I'Angleterre elle-meme, en souffrent egalement, et
I'auteur s'exagere beaucoup la part des sacrifices qui tombent a la
charge de la Russie. Le commerce de plusieiu's ports russe a pris la
voie de terre, et I'Angleterre elle-meme profite de cette voie detournee,
par laquelle elle re9oit differens produits russes necessaires a son in-
dustrie, tel que suif, chanvre, lin, etc., avec la difference toute fois
qu'elle supporte le sm-plus des frais de transport de terre, siu-plus qui
tourne en grande partie au profit de nos charretiers. Encore faut il
observer que jusqu'a present, et contre toute attente, c'est plutot le
commerce d'importation que le commerce d'exportation qui a souffert
du blocus des ports russes.

La valeur des exportations de la ville d'Odessa jusqu'^ la fin de
juin a depasse d'environ 200,000 roubles celle des exportations, a la
meme date, de I'annee 1853, qui a ete une des plus brillantes pour les
operations commerciales de cette ville ; mais quand meme le commerce
exterieur de la Russie serait entierement paralyse, ce qui n'est pas le
cas jusqu'a present, celan'aurait pas, tant s'en faut, des consequences
aussi desastreuses et aussi decisives pour son attitude, comme partie
belligerante, que celles que I'auteur croit y trouver. ... La foire de
Nijni-Novgorod, dont les operations commerciales s'elevent jusqu'^ la
valeur de 60 millions de roubles [240 millions de francs], est le
meilleur barometre du mouvement de notre commerce a I'interieur et
en partie aussi de notre commerce exterieur. Or les resultats de cette
foire, qui auraient ete pent etre serieusement affectes par les circon-

114 The Declaration of Paris

stances actuelles, ont ete, cette aimee, si satisfaisans qu'ils ont surpasse
toute attente. Les affaires se sont faites rondement, tout a ete paye
au comptant, et les engagemens de Taimee passee ont ete exactement
soldes.

To this M. Leon Faucher replied in the same month : —

" Suivant lui [Tegoborski] le commerce exteriem- de la Russie a
pen souffert du blocus, mie bonne partie ayant pris la voie de terre, et
en tout cas les charretiers russes y ont beaucoup gagne. Je ne voudrais
pas troubler la satisfaction patriotique de M. de Tegoborski k I'endroit
des charretiers, mais je lui ferait remarquer qu'il n'est nullement
certain que les acheteurs etrangers aient fait les frais de cette depense."

i856

The Congress of Paris and the Treaty of Peace.

The Congress of Paris met on the 25th February 1856, to settle
a general Treaty of Peace. At the nineteenth sitting, the 30th
March, the Plenipotentiaries affixed their signatures and the
seal of their arms to the Treaty, and its supplementary con-
ventions. Count Beust, in his M^moires, has described the Peace
as " a masterly example of how to reverse the effects of a war,
and obtain in the future the very opposite of what a treaty
is intended to secure " ; and Baron Bourqueney, second Pleni-
potentiary for France, remarked : " Quand vous lisez ce Traite,
vous vous demandez quel est le vaincu, quel est le vainqueur ? "
In the House of Lords Lord Derby declared that he accepted
the peace, as he believed the country accepted it, " without
enthusiasm, but without opposition."

With the Treaty of Paris itself this study has no concern ;
yet there is one link between the Treaty and the Declaration
appended to it, which may account for what took place at the
final sittings of the Congress. The French were eager for peace,
says Mr Evelyn Ashley in his Life of Lord P aimer ston : " The
Emperor himself was swayed by Count Walewski's many
Russian affinities ; he was horrified by the daily accounts of
the privations endured by his army in the Crimea, and he was
absorbed in a domestic event which had given him an heir,
whom he was anxious to christen amid the rejoicings for peace.
He was, therefore, only thinking of how to ' faire le g^nereux '
towards the Czar, whom he would gladly have conciliated now
that his position in Europe was secured."

" Faire le genereux " pervades the protocols of the Congress.
Everybody seemed full of concern for Russia. It was inevitable
that the same spirit should prevail to the end, when the British
Plenipotentiary offered with wide-open arms what the nations

115

116 The Declaration of Paris

of Europe had for so long desired so ardently, but hardly dared
hope ever to receive.

Speaking of the Declaration of Paris in 1857, Lord John
Russell said : " We all supposed that the Earl of Clarendon
went to Paris with a view to make peace with Russia. There
was no notice given to the people of this country, or to either
House of Parliament, that any such question would be dis-
cussed." " I believe," said Lord Derby, " if the country had
known the terms you were about to conclude, and the Declara-
tion you were about to sign, an indignant protest would have
been made against the betrayal of the national interests."

Criticism at the time, and since, has been concentrated on
the fact that the decision to accept the Declaration was come
to secretly, and it has been generally assumed that Lord
Clarendon acted on his own motion without the Cabinet. Mr
Evelyn Ashley, in his vindication, writes that it is desirable to
record the fact of the policy " having been deliberately adopted
by the English Cabinet, for what they considered good and
sufficient reasons ... as many absurd tales have been from
time to time current about it ; as though the English Pleni-
potentiary had agreed to it without any authority from home
or consultation with the rest of the Ministry."

The criticism carries, on the face of it, its own condemna-
tion. In this matter Lord Clarendon needs no personal vindica-
tion, for the simple reason that Plenipotentiaries at Congresses
do not act on their own initiative. What is deserving of
criticism is the fact that there is no record extant of the " good
and sufficient reasons " of which Mr Evelyn Ashley assumes
the existence. No White or Blue Book has ever been issued
containing the despatches which must have passed between
the Cabinet and Her Majesty's Plenipotentiary at the Congress.
The only reasons which have ever been given to the public are
to be found in Lord Clarendon's speech when the Declaration
was challenged in the House of Lords, soon after its signature.
How far they were good, and justified the introduction of so
great a change into the maritime practice of England without
consulting Parliament ; how far they were a sufficient excuse
for surrendering permanently what had so far only been waived,
must be judged by examining the justification given by Lord
Clarendon. Their sincerity could not fail to be challenged
in view of Mr Cardwell's reiteration in 1855, in regard to the
Declaration to the neutrals, of the principle which Sir WilUam
Molesworth had asserted with much circumlocution in 1854,
that " To waive is not to surrender."

The Declaration of the Congress 117

The Declaration of the Congress.

Having settled the terms of the Treaty of Peace, the Congress
at the twentieth sitting, on the 2nd April, discussed the technical
question whether the blockades should be raised before the ex-
change of the ratifications. The precedents were in favour of
extending the rigours of war even to its termination, continu-
ing the blockade till treaties were formally completed ; but the
prevailing spirit of liberality which had already exercised such
a happy influence on international relations must discard
precedent. France and Great Britain had already shown
their solicitude for commerce : they must not hesitate to grant
commerce this new benefit. Thus the President, Count Walew-
ski ; and Lord Clarendon, acting on the suggestion, proposed an
armistice at sea which would have the effect of raising existing
blockades. The Russian plenipotentiaries, adopting these
views with enthusiasm, declared that the proposition would
certainly be accepted with extreme favour by their Government.
But, while agreeing with the reason for the proposal, they felt
bound nevertheless to reserve it for the approval of the Czar.
The representatives of the other countries declared that the
neutrals would receive the decision " avec un sentiment de
vive reconnaissance." At the 21st sitting, on the 4th April, the
Russian plenipotentiaries announced that the measures pro-
hibiting the export of Russian produce from Russian ports
would be cancelled, and the armistice was thereupon agreed
to.^ The allies promised that their troops would be withdrawn
within six months, and Russia on her side that her troops
would be withdrawn from Kars as promptly as possible :
Austria also would withdraw from the Principalities : all these
promises to be put in force on the exchange of the ratifications
of the treaties.

At the 22nd meeting, on the 8th April, further details con-
cerning the evacuation of territory were agreed to, and thus all
questions relating to the Peace were satisfactorily settled.

But Count Walewski thought it was desirable that, before
separating, the plenipotentiaries should exchange their views
on certain outstanding subjects, the settlement of which might
prevent new complications arising. Although they were
assembled specially to settle the Eastern question, they might
reproach themselves if they did not take advantage of the

^ See Document No. 17

118 The Declaration of Paris

circumstance which had brought the representatives of the
principal European Powers, " pour elucider certaines questions,
poser certains principes, exprimer des intentions, faire enfin
certaines declarations," with the sole intention of assuring the
peace of the world for the future — by dissipating, before they
had become a menace, the clouds which were still looming on
the political horizon. These questions were Greece — ^the troops
of England and France being still in occupation of the Piraeus :
the Pontifical States — Rome being occupied by the French
and Austrian troops at the request of the Holy See. Then,
" following up the same order of ideas, Count Walewski asks
himself" whether the state of certain Governments of the
Italian Peninsula, especially that of the Two Sicilies, did not
merit the attention of the Congress. Finally, Belgium, whose
best relations with the rest of Europe were being jeopardised
by the proceedings of "La Marianne," a society whose opera-
tions tended to disturb the repose and tranquillity of France.

All these matters were then formally put before the Con-
gress and discussed, and, with regard to some of them, con-
clusions arrived at. But even yet the work of the Congress
was not finished. Count Walewski proposed to the Congress
" de terminer son oeuvre par une declaration qui constituerait
un progr^s notable dans le droit international, et qui serait
accueillie par le monde entier avec un sentiment de vive re-
connaissance." Since the Congress of Westphalia, liberty of
conscience had become an article of faith ; since the Congress
of Vienna, the abolition of the slave trade and the freedom of
navigation of the rivers had been accepted : " il serait vraiment
digne du Congres de Paris de poser les bases d'un droit maritime
uniforme en temps de guerre, en ce qui concerne les neutres.
Les quatres principes suivants attendraient completement ce
but :—

"1. Abolition de la course :

" 2. Le pavilion neutre couvre la marchandise ennemie,
excepte la contrebande de guerre :

" 3. La marchandise neutre, excepte la contrebande de guerre,
n'est pas saisissable meme sous pavilion ennemi :

" 4. Les blocus ne sont obligatoires qu'autant qu'ils sont
effectifs."

Whereupon the Earl of Clarendon reminded the Congress
how, at the beginning of the war, England, as well as France,
had sought by every means to mitigate its effect on the neutrals,
and how each had renounced for their benefit principles which
up to this war they had invariably maintained. Now England
was prepared definitely to abandon her principle provided that

The Declaration of the Congress 119

privateering were abolished : "la course n'est autre chose
qu'une piraterie organis^e et legale, et les corsaires sont un
des plus grands fl^aux de la guerre, et notre etat de civilisation
et I'humanite exigent qu'il soit mis fin a un syst^me qui n'est
plus de notre temps." It was, however, to be well understood
that if the proposition of Count Walewski were accepted by the
Congress it would only bind those Powers which had accepted
it, and could not be invoked by those which had refused to
associate themselves with it. Count Buol, on behalf of
Austria, declared that he appreciated the spirit and the
bearing of the proposal, but having no instructions on the
matter, he could say no more than that he would ask his
Sovereign for orders.

Baron Manteuffel declared that he was sufficiently acquainted
with the intentions of the King, his august Master, not to
hesitate to express his opinion without instructions. The
maritime principles which had been proposed to the Congress
had always been professed by Prussia, which had continually
endeavoured to get them generally adopted. He considered
himself authorised to join in a document having for its object
their definite introduction into the public law of Europe. He
was confident that the King of Prussia would not refuse his
consent to what the Congress might approve.

The Russian plenipotentiaries promised to obtain instruc-
tions from their Government.

The President, Count Walewski, then summed up the
discussion on the various matters he had submitted to the
Congress. He was pleased there had been discussion, though
he could have wished that some more definite conclusions had
been reached. With regard to the maritime law proposals, he
hoped that at their next meeting all the plenipotentiaries would
have received instructions to sign a document which " en
couronnant I'ceuvre du Congr^s de Paris, r^aliserait un progr^s
digne de notre epoque."

At the 23rd meeting, on the 14th April, Count Buol declared
that Austria congratulated herself on being able to join in a
declaration the salutary influence of which she recognised.
Count Orloff, on behalf of Russia, expressed himself in the same
sense ; but his Court was not prepared to bind itself to maintain
the principle of the abolition of privateering, and defend it
against those Powers who would not accede to it. The re-
presentatives of Prussia, Sardinia, and Turkey having also
given their assent, the Congress adopted the Declaration as
drafted.

But the Earl of Clarendon thought that their meeting had

120 The Declaration of Paris

potentialities for good which were not yet exhausted, and had
another proposition to make. Article VII. of the Treaty of
Peace recommended the mediation of a friendly State in case
of differences arising between the Porte and any of the signatory
Powers. The calamities of war being still too present to every
mind not to make it desirable to seek out every expedient
calculated to prevent its return, he conceived that this happy
innovation might receive a more general application, and thus
become a barrier against conflicts which frequently only break
forth because it is not always possible to enter into explanations
and come to an understanding. Whereupon discussion followed,
all admitting the wisdom of the proposal ; and after a little
passage of arms between Count Buol and Count Cavour about
the occupation of the Roman Legations by Austrian troops,
" MM. les plenipotentiaires n'hesitent pas a exprimer, au nom
de leurs Gouvernements, le voeu que les Etats entre lesquels
s'eleverait un dissentiment serieux, avant d'en appeler aux
armes, eussent recours, en tant que les circonstances I'ad-
mettraient, aux bons offices d'une Puissance amie." They
further hoped that the Governments not represented at the
Congress would associate themselves with the idea which had
inspired the wish just recorded. The Declaration was annexed
to the protocol : —

Annexe au Protocole No. 23.
DSclaration.

" Les Plenipotentiaires qui ont signe le Traite de Paris
du 30 Mars, 1856, reunis en conference, —

" Considerant :

" Que le droit maritime, en temps de guerre, a ete pen-
dant longtemps I'objet de contestations regrettables :

" Que I'incertitude du droit et des devoirs en pareille
matifere, donne lieu, entre les neutres et les belligerants, a
des divergences d' opinion qui peuvent faire naitre des
difficultes serieuses et meme des conflits :

" Qu'il y a avantage, par consequent a etablir une
doctrine uniforme sur un point aussi important :

" Que les Plenipotentiaires assembles au Congres de
Paris ne sauraient mieux r^pondre aux intentions dont
leurs Gouvernements sont animes, qu'en cherchant a intro-
duire dans les rapports internationaux des principes fixes
k cet ^gard :

" Dument autorises, les susdits Plenipotentiaires sont
convenus de se concerter sur les moyens d'atteindre ce

The Declaration of the Congress 121

but : et etant tombes d'accord, ont arrete la Declaration
solonnelle ci-apr^s : —

"1. La course est et demeure abolie :

"2. Le pavilion neutre couvre la marchandise ennemie,
a r exception de la contrebande de guerre :

"3. La marchandise neutre, k 1' exception de la contre-
bande de guerre, n'est pas saisissable sous
pavilion ennemi :

"4. Les blocus, pour etre obligatoires, doivent ^tre
effectifs, c'est k dire maintenus par une force
suffisante pour interdire reellement I'acc^s du
littoral de I'ennemi.

"Les Gouvernements des Plenipotentiaires soussign6s
s*engagent a porter cette Declaration a la connaissance des
Etats qui n'ont pas ete appeles a participer au Congres de
Paris, et a les inviter a y acceder.

" Convaincus que les maximes qu'ils viennent de pro-
clamer ne sauraient etre accueillies qu'avec gratitude par le
monde entier, les Plenipotentiaires soussignes ne doutent pas
que les efforts de leurs Gouvernements pour en g6neraliser
I'adoption ne soient courronnes d'un plein succes.

" La presente Declaration n'est et ne sera obligatoire
qu'entre les Puissances qui y ont ou qui auront accede.

" Fait a Paris, le 16 Avril, 1856."

The signatures follow of the plenipotentiaries of Austria,
France, Great Britain, Prussia, Russia, Sardinia, and Turkey.

The final meeting took place on the 16th April. The Protocol
of the previous meeting having been read and approved. Count
Orloff announced that he had instructions to adhere, on behalf
of Russia, to the wish expressed at that meeting, that " States
between which any serious misunderstanding may arise should,
before appealing to arms, have recourse, as far as circumstances
may allow, to the good offices of a friendly Power." The
Declaration was then signed.

But the matter was not even yet finally disposed of.

On the proposition of Count Walewski, and recognising that
it would be to the common interest to maintain the indivisi-
bility of the four principles of the Declaration, the Plenipoten-
tiaries agreed that Powers which have signed it, or may
adhere to it, cannot in justice enter into any arrangement
relating to the rights of neutrals in time of war which is not
based on the four principles of the Declaration. This resolu-
tion, however, was not to have any retroactive effect nor to
invaUdate existing conventions.

122 The Declaration of Paris

A vote of thanks was thereupon proposed by Count Orloff,
and seconded by the Earl of Clarendon, to Count Walewski
for his able conduct of the Congress, and was suitably replied
to by M. le Premier Plenipotentiaire de la France.

There is no other official record relating to the Declaration
of Paris. The Treaty of Peace with its annexed conventions —
(a) respecting the Straits of the Dardanelles and of the
Bosphorus, (b) limiting the naval forces of Russia and Turkey
in the Black Sea, (c) respecting the Aland Islands — were sub-
sequently published in a White Paper, but the Declaration was
not included. There is no official record of any instructions
sent to the British Plenipotentiaries, nor of any references
by them to the Cabinet. There does, however, exist in the
Public Record Office a despatch from Lord Palmerston to
Lord Clarendon, dated the 13th April, the day before the 23rd
meeting of the Congress at which the Declaration was approved
and signed, which was as follows : —

Lord Palmerston to Lord Clarendon.

Foreign Office,

13th April 1856.
My Lord,

I have the honour to transmit to your Lordship a copy
of the Draft of the Declaration respecting Maritime and
Neutral Rights, which you forwarded to me on the 11th
instant, and I have to state to Your Lordship that Her
Majesty's Government concur in the substance of this pro-
posed Declaration, provided that Amendments which are
suggested in the Margin be made in it. Her Majesty's
Government do not think it advisable to state in the Pre-
amble, as strongly as it is stated in the proposed Draft, the
assertion that the maintenance of those principles of Mari-
time Law for which in times past Great Britain has invari-
ably contended, must be a permanent cause of disturbance
in the relations between Neutrals and Belligerents, and the
word " calamities " seems needlessly strong as applicable to
the differences which opposite opinions in regard to these
questions have in time past produced. It may no doubt
be politic for Great Britain to give up for the future doctrines
of Maritime Law which she has in times past contended for,
but Her Majesty's Government should not in doing so cast
any censure upon the former course of the British Govern-
ment, nor admit that the course which they are prepared
to take upon a balance of advantages and disadvantages is
forced upon them by necessity.

Again, it would not be correct to say that a Declara-

The Declaration of the Congress 123

tion of principles such as is now proposed could alter the
Law of Nations. That Law rests upon foundations wider
and deeper than the occasional Declaration of a few States,
and it could not be altered except by some agreement much
more general and much more formal than the proposed
Declaration ; and it would be dangerous for Great Britain to
admit that such a Declaration issued by the representatives
of a small number of States could alter the Law of Nations.
An example thus set and a precedent thus established, by
the consent and participation of Great Britain, might here-
after upon other occasions be used for the purpose of estab-
lishing Doctrines of International Law to which Great
Britain might have the strongest possible objection and
repugnance.

It is desirable not only that the Declaration should
be communicated to other States, but that the States to
which it shall be communicated shall be invited to accede to
it, and it is highly important to record that the principles
thus proclaimed shall not be applicable to the relations of
the Declaring Powers with States which shall not have
acceded to the Declaration.

This despatch gives us an insight into what the preamble
to the Declaration as originally drafted contained, and we may
appreciate the nature of the surrender which Lord Clarendon
proposed to make. It must be conceded, however, that he was
consistent. The adoption of the new principles, not as a politic
concession, but in recognition of the neutral assertion of right,
could not be based on any other ground than that the mainten-
ance of the English principles of maritime law must be a " per-
manent cause of disturbance in the relations between neutrals
and belligerents " ; that their adoption in our former wars had
produced " calamities " which must be laid to the charge of the
Governments of the day, and that necessity now forced England
to abandon them.

It is clear, moreover, that Lord Palmerston did not con-
template any permanent alteration of the Law of Nations.

In connection with the dates of the meetings at which the
Declaration was discussed at the Congress, some information was
given in the House of Commons on the 3rd July 1898, in answer
to a question put by Mr Gibson Bowles, which is difficult to
follow. The Attorney-General stated that the draft was re-
ceived in London on the 7th April 1856, was at once submitted
to the Queen, and her approval signified to Lord Palmerston on
the 8th. It was only on the 8th that Count Walewski made

124 The Declaration of Paris

his proposal to the Congress, and Lord Palmerston's despatch
of the 13th appears to indicate that the draft it refers to
was the first that had been received. The dates given in the
answer of the Attorney-General must have been inadvertently
inaccurate.

Ill

The Debate in the House of Lords.

Neither the Treaty of Peace nor the Declaration stirred the
House of Commons ; but in the House of Lords the Treaty was
discussed on the 5th May, and on the 22nd Lord Colchester
moved the following resolution in regard to the Declaration : —

That the most eminent Jurists of all ages have accepted
as a Principle of International Law that the Right of captur-
ing an Enemy's goods on board of Neutral vessels is in-
herent in all belligerent Powers ; that the Maintenance of
this right is of essential Importance, and its Abandonment
of serious Injury to a Power whose main reliance is on her
Naval Superiority :

That Great Britain consequently, although occasion-
ally waiving the Exercise of the Right by Specific Treaties,
has invariably refused to recognise the Abandonment of a
Principle which successive Governments have concurred in
considering identified with her national Greatness :

That this House deeply regrets that a Principle so
long and so strenuously maintained should in the recent
conferences at Paris have been suddenly abandoned with-
out the previous knowledge or sanction of Parliament by
Plenipotentiaries assembled for the purpose of discussing
the terms on which Peace with Russia might be concluded
and the Affairs of the East satisfactorily adjusted.

The interest of the debate centres in two speeches, Lord
Clarendon's defence and Lord Derby's reply. The only light
thrown at the time on the reasons which prompted the action
of the Government is to be found in the former ; we should
therefore be able to extract from it some idea of what were sup-
posed to be the merits of the principles, especially " free ships
free goods," embodied in the Declaration, and the reasons which
had induced Lord Clarendon, as he confessed to Lord Shaftes-
bury, to wish permanently to modify the principles of the Law
of Nations.

The Debate in the House of Lords 125

The constitutional principle involved must first be briefly
referred to. The Foreign Secretary defended the action of the
Government in not submitting the Declaration to Parliament :
first, because it is the right of the Crown to conclude treaties
without the previous knowledge and consent of Parliament :
secondly, because it is the prerogative of the Crown to sanction
a Declaration of this kind, and it does not require the ratification
of Parliament. Lord Derby concurred, and declared that no
one had asserted or maintained the contrary. Some people
undoubtedly did so at the time, and the point has been raised
on many occasions since. The question involved is exceedingly
complicated, and it will be more convenient to postpone the
consideration of it till the time comes to review all the legal
questions involved in the Declaration. It is sufficient for the
moment to say that the first principle laid down by the Foreign
Secretary is inaccurate because it is incomplete, and gives an
insufficient view of the scope of the treaty-making prerogatives
of the Crown ; and that the second does no more than beg the
question raised by the criticism of the Government's action.

Of the speech itself it is difficult to speak in terms of restraint.
First, there are some passages which, in relation to the subject
with which they deal, become mere sequences of words. Thus
in answer to the assertion that the right to seize enemy goods
on neutral vessels is necessary to our safety as a great maritime
Power, Lord Clarendon said : —

But if you affirm this doctrine, you must do so in an
absolute and unconditional sense — you must give it no
limitation either as to place or time — you must accept it
everywhere and for ever ; and this I cannot but think would
be a most unwise and injudicious proceeding where change
is the visible law of society, and where everything is rapidly
undergoing variation around us ; more particularly would
it be unwise and injudicious to take such a course with
respect to a matter which the noble Lord himself admits
has been repeatedly altered to meet the exigencies of the
times, and against which all the great maritime Powers of
the world have constantly and consistently protested.

The reply might have been given that Lord Clarendon was
urging the House to affirm the doctrine that " free ships make
free goods "in an absolute and unconditional sense, giving no
limitation either as to place or time, accepting it everywhere
and for ever. It might have been contended that this would be
a most unwise and injudicious proceeding where everything is
rapidly undergoing variation around us, especially in regard to
naval armaments, more particularly with respect to a matter

126 The Declaration of Paris

against which the greatest maritime Power of the world had
constantly and repeatedly protested.

Again, referring to the anxiety of the neutrals to know
whether we intended to maintain our former practice, he
said : —

Almost daily inquiries were addressed to me by the
representatives of the neutral Powers, and though I cer-
tainly cannot say that the maintenance of our former rule
would have led to another " Armed Neutrality," it was
quite plain that we should have stood alone in the world —
we should have had every other maritime Power against
us, and most properly so — because we should have been
maintaining a law which was contrary to the public opinion
of the world, which was hostile to commerce, and as un-
favourable as possible to a mitigation of the evils of war.
We should not only have stood alone in the world — but it
was quite clear that we should have been at war not only
with Russia, but with every other maritime Power in the
world ; or, if not actually at war, in a position of most
unpleasant character with other nations, and especially
with the United States.

Apart from the confusion of ideas which is reflected in
the construction of the sentence, the question is inevitable :
After the answer to the Scandinavian Powers in January,
was there any such anxiety among the neutrals ? Whatever
fate had in store for British merchants, the neutrals at least
were safe.

Secondly, there are curious inaccuracies, some verbal, as in
the statement, " we have never been at war as anything but a
principal " ; and some wanting in grip of the true meaning of
the right of seizure at sea, as in the statement, *' If the neutral
fulfils the obligation of neutrality, we have no claim to interfere
with him. Were it otherwise, in the late war we should have
been justified in sending an English fleet to Memel to demand
all Russian property that might happen to be there ; or the
French in marching an army into Belgium to seize all Russian
property at Antwerp."

Thirdly, there are many weak joints in the argument. That
remarkable composition, the Consolato del Mare, which has so
largely influenced all States in the settlement of their principles
of maritime law, was passed over merely as " a treatise written
in the Proven9al tongue in the thirteenth century " ; and Grotius
himself was summarily dismissed as a jurist of no weight. His
defence of the principle of seizing enemy goods on neutral ships
must be set aside, because some jurists have defended the right

The Debate in the House of Lords 127

of belligerents to put women to death, to kill prisoners after
surrender, and to torture captives before a besieged town in
order to induce it to submit. When Lord Derby challenged
this statement as futile, Lord Clarendon explained that what
he meant to say was that Grotius " had recognised the right
laid down in the Consolato del Mare without assigning his
reasons for doing so " !

Fourthly, the central point of the speech was the analysis
of the treaties in which England had agreed to " free ships free
goods," which was evidently based on Sir William Moles worth's
speech in 1854.^ The fact that we had never gone further than
conceding the right to the other party to the treaty, when we
were at war, accepting the reciprocal right in return, was ignored.
We were said to have been parties to thirty-two international
engagements in which the principle was adopted. The point
that in no treaty had we ever given to all neutrals the right to
carry our enemies' goods free, and so adopted the principle,
was ignored. Yet one such treaty, but only such a treaty,
would have been a precedent for what had been agreed to at
Paris. The same criticism applies to the remark, also borrowed
from Sir William Molesworth, that " in the course of the
last two centuries a hundred and thirty international engage-
ments have been made between the principal Powers of the
world, in all of which, with eleven exceptions, the rule ' free
ships free goods ' was contained." Not one was referred to in
which the principle was adopted in its full significance ; nor any
of the many in which the old practice had been adhered to.

From this most superficial analysis of the subject Lord
Clarendon's deduction was, " that in time of war, and in the
heat and animosity of war, men lay aside this principle and
resort to extreme and violent measures ; but that when at peace,
and under the influence of reason and judgment, they never
hesitate to declare that that should be the rule of all civilised
nations." Yet it may be remarked that the Consolato del Mare
was framed " under the influence of reason and judgment," and
the nations never hesitated to adopt it as the wisest rules of
war, until the professional neutrals found the maxim paid them
better and pressed it on the belligerent nations. But, assuming
the facts to be accurate, if any inference is to be drawn from
them, it is that nations at war know what war means, and ignore
the ideas which the student and the philosopher conceive in
peace to be those on which war ought to be conducted.

Everything in the past, however, which favoured the principle
of seizure was brought within the ban as a relic of barbarous
~ 1 See p. 83.

128 The Declaration of Paris

times ; every argument which favoured the principle of freedom
of enemies' goods was adduced as worthy of the great object
of modern civilisation, to mitigate the miseries of war. Then,
as he had done in his speech in 1854, he glided from the fact of
seizure to the persons who were authorised to seize — " the
buccaniers " : " We even give licences to buccaniers to seize the
property of peaceful merchants on the ocean."

There was confusion of thought even on this most easy point
of attack against existing practices. So long as privateering
was kept distinct from the other matters dealt with by the
Declaration the point was a good one. The time had arrived
when privateering ought to be, and to remain, abolished ; the
excesses of the privateers justified the action of abolishing it
in the name of humanity.

So far as the neutrals and their contentions were concerned,
Lord Clarendon disposed of the history of England during the
last hundred years in one short sentence : " They have reason
and justice on their side." As the speech reads, the neutral
protests which Lord Clarendon applauded were against the
violation of the neutral flag by privateers. He intended to
refer to their protests against the seizure of enemy property on
their ships, which was the real point of attack.

One conclusion only can be come to after this analysis of
the speech : that Lord Clarendon was not a master of the
details of his subject. The " good and sufficient reasons "
which had induced the Cabinet to approve of the signature
of the Declaration are but the thin and unsubstantial long-
ings for something which stirred the minds of men who refused
to face the realities of war, and in support of which, begging
the question in issue, they invoked the name of humanity and
the demands of civilisation.

Further, there were two notable omissions in the speech.
First, Lord Palmerston's instructions of the 13th April were
not only not referred to, but were almost deliberately ignored,
for nothing that Lord Clarendon said had any relation to the
points emphasised in the Prime Minister's despatch. Secondly,
a close and impartial review of the working of the new principle
during the war should have been made ; it was the only way
in which the merits of the new principle could be tested. It
was useless in 1856 talking about the commercial humani-
tarianism of a doctrine which allowed the neutrals to protect
our enemies' goods from seizure, without seeing what the
practical results of it had been during the years 1854 and 1855.
The time had passed for vain imaginings ; realities stared the
Government in the face. Unless debates pass into the air, and

The Debate in the House of Lords 129

Hansard is a sealed book, this fact must have been known —
that the extremists had found a new merit in the prin-
ciple : it allowed trading with the enemy in defiance of the
ancient law. The real issue was shirked, and in the House
of Commons no one took sufficient interest in the subject
to raise debate.

But there is something stranger still in Lord Clarendon's
speech. Having made it plain that at the commencement of
the war the only wise and rational course was for each of the
allies to abandon its extreme doctrines, he said : " And now,
my Lords, let me ask, having once waived these rights, was it
possible, or was it prudent, for us to restore them ? " Yet when
the Declaration to the neutrals in 1854 was challenged, a great
parade was made of the fact that there had only been a waiver
" for the present," and that this did not amount to a surrender !
It had been, as we have seen, the Government case from the
very beginning of the discussions. Mr Milner Gibson, on the
17th March 1854, had declared : " We make no surrender of
principle ; we do not deprive ourselves of the power of exercis-
ing these extreme rights whenever we think fit, by not allow-
ing them to be exercised now." " To waive for the present a
right," said Sir William Moles worth, on the 4th July 1854,
" and to surrender it are two quite distinct things." " Not
waiving any of those belligerent rights for which Great Britain
had contended in former wars," said Mr Card well, on the 20th
February 1855, " but suspending a part of them during the
continuance of the present conflict on motives of policy."
Lord Stanley of Alderley, on the 15th May 1855, referred to
the Order in Council of the 15th April 1854 as a document
" whereby we waived but did not abandon " the right of
seizure.

Lord Clarendon's plea for what was done in 1856 is taken
up by Mr Evelyn Ashley, the apologist : " It was evident that
the principle of seizure once abandoned could never be revived ;
the concession to neutral rights once made could never be with-
drawn."

But if it is " evident " that the permanent was bound to
follow the temporary abandonment, the alternatives were very
plain : either the position which resulted from the concession
ought to have been foreseen when it was made in 1854, but was
not ; or it was foreseen, and the whole thing was deliberate.
This question must be asked : Was there no one in the Queen's
Councils in 1854, when the matter was being discussed, with
sufficient foresight to put this question to the zealots for the
new doctrine in the Cabinet, " Having once waived these

130 The Declaration of Paris

rights, will it be possible, or will it be prudent, for us to
return to them ? "

Only one other sentence in Lord Clarendon's speech calls
for brief comment : "I can tell your Lordships that it was not
a very easy matter to accomplish." The protocols of the
Conference scarcely seem to warrant this statement.

Many Lords spoke during the debate ; among them the
Earl of Carnarvon, " with a degree of power and ability "
which drew from Lord Derby well-merited compliment. He
hit the manifest blot in Lord Clarendon's speech, the confusion
of the question of privateering with the concessions to the
neutrals. " They stood upon an entirely different footing,
although it might be easy to confound them, and to represent
an opposition to extravagant concessions to neutrals as a
defence of privateering." The Lord Privy Seal, the Earl of
Hardwicke, thought — so vague were the Ministers themselves
as to what they had really assented to — that even in the
Declaration of Paris we had only waived our belligerent right
of seizure, not abandoned it. But the interest centres in Lord
Derby's own speech, which stands as a beacon above the flood
of two years of talk. Against the tliin philosophy and the vague
appeals to civilisation and humanity, against the inaccuracies
of fact and inference, he set the stern necessities of war, and
the facts of England's history. His text was that the adoption
of the principles of the Declaration involved the abandonment
of the naval superiority of the country, and that the terms of
the agreement were not known before they were agreed to.
The need for secrecy was imperative : "I should like to know
what arguments were used by the noble Earl, and what condi-
tions were made for the surrender of these rights ! " The pro-
tocols were fresh from the printers : there were no reasons, no
arguments in them. Reasons, which gravely weighed the con-
sequences, have never been given from that time to this. So
far as the abolition of privateering was concerned, Lord Derby
accepted it cordially and willingly as a concession to humanity ;
but it was not a boon to England, or the equivalent for the
abandonment of her principle of seizure. If it were resorted to
by all, none would gain more or suffer less than England.

Dissecting Lord Clarendon's defence. Lord Derby pointed
out that the claim that humanity demanded the freedom of
enemy goods on neutral ships was answered by the well-known
fact that the doctrine of right had not been heard of till Frederick
the Great put it forward, in 1752, in defence of his refusal to pay
the last instalment of the Silesian loan.

As to this, there are two sentences in the Law Officers'

The Debate in the House of Lords 131

Report in reply to the Prussian Exposition des Motifs which
are pregnant with meaning : —

Before the year 1746, the Prussians do not appear to
have openly engaged in covering the Enemy's Property.

From 1746 the Prussians engaged in the gainful Practice
of Covering the Enemy's Goods ; but were at a loss in what
Shape, and upon what Pretence it might best be done.

This suggestion was not made without full consideration :
the " Pretence " was that free ships, as a matter of right, and
not merely as a matter of mutual agreement, make free goods.

Since then there had been many advocates of the novel
doctrine ; but, continued Lord Derby,

when the noble Earl put the question on the score of
humanity, I am tempted to ask, whether the noble Earl is
not laughing at the credulity of his hearers ? Was it the
regard which Catherine of Russia felt for the principle of
humanity, that induced her to raise the question ? Was it
humanity which induced the other continental States to
follow her example ? If it was humanity at all, it was
humanity for themselves. Let us have no more of this
talk about humanity. Let us look at the question as it
really is, as a question of policy — a question which of our
undoubted rights it is for our interest to maintain, and
which we may safely abandon ?

From this record of historical fact two alternative deduc-
tions were drawn : by Lord Clarendon and his supporters,
that if we persisted in maintaining our principle of seizure we
should be alone, facing and irritating the neutrals ; by Lord
Derby, that in times past " we have been alone, and yet main-
tained and upheld the doctrine against a confederacy of
opponents, as the segis of our power." That is the clear issue,
and the Government case was only cumbered by confused
notions of civilisation at last triumphant over the age of bar-
barism. The opposition of the neutrals was dwelt on as a
sufficient reason for abandoning our ancient principle : the
reason for that opposition, which is the lesson of a hundred
years of history, was glozed over : the consequences of the
abandonment were ignored. Pitt and the statesmen of that
day knew what those consequences would be, and they were
not afraid to stand alone against all the world in arms. The
principles which Pitt maintained were reasserted by Canning
in 1827, when he refused to ratify a treaty concluded with
Brazil on the ground that it contained an article abandoning
the right of seizure.

182 The Declaration of Paris

The question of pohcy Lord Derby put to a very practical
test. England was a naval and not a military Power ; omni-
potent at sea, it is true, but, without alhes, impotent on land.
Where should we have been in a war with Russia, having aban-
doned the principle of seizing enemy goods on neutral ships,
if we had not been assisted by the French military force ? The
only power we could have brought against Russia was naval
power, and if that had been unsupported by military assistance,
what impression should we have made upon Russia up to this
moment ? If we had not had the assistance of the greatest
military Power on the earth, we would not have signed a peace
for the next ten years, unless it had involved humiliating
concessions. Or suppose — which God forbid ! — ^that a war
should arise between England and France, what means should
we have of opposing France, except closing her up hermetically,
and stopping her commerce ? What should we do ?

You cannot blockade the whole coast of France ; but
you can practically prevent her from sending out one single
bale of merchandise. Your new law permitting French
goods to go with impunity on board neutral vessels comes
into operation ; you have no blockade ; France gives up
her whole commercial marine ; she makes her vessels into
vessels of war ; she has seamen to man them ; and, before
your very face, she carries on her whole commerce under the
Prussian or American flag. You are powerless. Your
power is gone. Your right arm is cut off. Your only
means of defence are abandoned, and abandoned at the
suggestion of France. Was there ever a Minister so led by
the nose ? Was there ever a Minister who so deliberately
walked into the trap set before his face, and so tamely and
gratuitously surrendered the foundation of England's
greatness ?

In the case of war with the United States the position would
have been even graver, for, though the United States was not
a party to the Declaration, France would be entitled to the
benefit of it, and could carry the goods of the enemy free.

This argument put the case in the smallest possible compass :
we had adopted the principle of " free ships free goods "
because, with a military Power as an ally, we might do so with
safety in this war. Without such an ally, the case for the new
principle vanished.

France and England are the two greatest Powers of
Europe, and God forbid that they should be separated.
United, they may secure or they may imperil the peace of
the world ; but separated, they each have their peculiar

The Debate in the House of Lords 133

means of offence and defence. The means of France is
her army ; and the main resort of England must always be
to her navy, whether it be to defend her own coasts from
aggression, to which, thank God, she has hitherto been a
stranger, or to enforce her rights upon foreign nations.
By the navy you must do it, and the more you circum-
scribe the power of that navy, the more you weaken the
strength and influence of the country.

These are hard, substantial facts, and amply justify the
rhetoric of Lord Derby's denunciation of " the humiliating
Clarendon Capitulation of Paris " — that it was " cutting off
the right arm, as it were, of the country." " I look upon it,"
he said, " as depriving her of those natural advantages which
her great maritime power has given her in war, and of the
exercise of that superiority and those belligerent rights, with-
out which she is nothing. If she remains not mistress of the
seas, she falls immediately and naturally into the position of a
third-rate Power." ^

The right to seize enemy goods on neutral ships was accepted
by all jurists of earlier days, was recognised by all jurists of
modern times, and had been upheld by every statesman of
importance in this country down to the latest, and it was re-
served for the Party then in power to throw it away, " although
Pitt and Grenville and Canning successively declared it to be
the mainstay of the naval power of England."

In one brief sentence Lord Derby summed up the long story
of England's attitude on the question of the neutrals through
the stormy periods of the Armed Neutralities. She had not
been afraid to stand alone against a world in arms.

That attitude inspired the glowing pen of Mallet du Pan
to a longer tribute than Lord Derby's to the greatness of the
manner in which she faced the hostile world. I have placed it
on the first page of this series of books. It will bear quoting a
second time.

Des malheurs, des ressources, des dangers renaissants, une
puissance ebranlee mais terrible encore au milieu de ses desastres, un
courage opiniatre et I'apparence de toutes les vertus publiques an sein
de la corruption politique ; tel est le tableau que continue d'offrir
I'Angleterre. Tous les efforts possibles a un empire, Tor, les hommes,
les vaisseaux, les intrigues, tout est employe pour succomber avec
gloire ou pour triompher en se ruinant. L'histoire n'offre pas un

^ To achieve this was the motive, expressed by De Vergemies' Con-
siderations, for France aiding the United Colonies in the War of Indepen-
dence ; see Documentary History oj the Armed Neutralities, Document
No. 4, C

134 The Declaration of Paris

premier exemple d'une nation de dix millions d'individus attaquee
dans les quatre parties du globe par une ligue redoubtable et resolue
a faire face partout, sans que les defaites, les dissipations, le vide
d'hommes, le poids des subsides et celui des emprimts, fassent chanceler
la Constance de ses conseils. Get etonnant spectacle est-il I'effet d'lm
entetement d'orgueil ou celui d'une magnanimite encouragee par le
souvenir de succes et par I'estime de soi-meme ? . . . Surchargee de
taxes, endettee de deux cents millions sterling, dechiree par 1 'esprit de
parti, amoUie par I'opulence, corrompue par la soif de I'argent, obligee
de transporter I'elite de ses forces a deux milles lieues d'elle, comment
done I'Angleterre n'est-elle pas ecrasee par I'efFort de ses ennemis ?
Comment, menacee ainsi que le fut Venise, par tous les prophetes poli-
tiques, d'une ruine inevitable, n'a-t-elle perdu depuis quatre ans que
des etablissements secondaires ? Je ne parle pas des colonies, elle ne
lui appartenaient deja plus lorsque la France leur a prete son secours.
C'est que les veritables nerfs de sa puissance ont encore tout leur
ressort. Sa marine est entiere, son commerce preserve, I'illusion de
son credit subsistante, mais surtout ses ennemis sans concert. Au
lieu de se consumer en promenades sans objets ou en tentatives aven-
turees, la flotte de la Manche a ete tout I'ete en mouvement pour veiller
sur le retour des richesses du commerce. EUes attestent combien
pen la guerre les a diminuees, et I'opulence de la nation au milieu des
dissipations du tresor public. Dans I'espace de deux mois, nous avons
vu cinq flottes marchandes verser dans les ports d'Angleterre les tribus
de tout I'univers, et insulter, par leur rentree a quatre puissances
dont les forces n'ont pu leur fermer la route de la Tamise. — {Annales
Politiques, t. iii, pp. 71, 72.)

Tw^o curious points remain to be noticed.

In the circulars sent to the English and French diplomatic
agents abroad instructing them to notify to the neutral Powers
the Declaration of 1854, stress was specially laid on the necessity
for their good behaviour. In his despatches to Count Walewski,
M. Drouyn de Lhuys had pointed out that although the rights
were suspended during the war, the allies would reserve to them-
selves the right of withdrawing this suspension if occasion arose.
In his Memoire, too, he gives the true meaning of the emphasis
which was to be laid on the correlative neutral duty of preserving
their subjects in strict neutrality. The benefits of the Declara-
tion would remain " pourvu qu'aucune fraude n'appelat sur eux
la s^verite des belligerants."

By the absolute statement of the new principles in the
Declaration of 1856, this reservation of power to revert to the
old practices was abandoned.

The acceptance of the Declaration of Paris was not mentioned
in the Queen's speech proroguing Parliament, on the 29th July
1856.

The Powers which Adhered to the Declaration 185

The Powers which Adhered to the Declaration.

The Powers which had not been represented at the Congress
were invited, as arranged, to adhere to the Declaration, and it
was accepted by a large number almost immediately, in June,
July, and August 1856.^

Most of the adherences were conveyed to the French diplo-
matic representative in letters more or less ornate ; a few —
the Argentine Confederation, Ecuador, and Switzerland — at
once took the constitutional steps necessary to make the
Declaration operative. In the first case, a special law was
passed authorising the President to adhere ; in the two other
cases, the legislature of the State itself adhered by a special
decree. There seems to be no official information as to whether
such steps were taken by the other States. ^

The Government of Sweden was unable to resist the tempta-
tion to remark that the four principles " ay ant de tout temps
6te reconnu et defendu par la Su^de, qui, dans mainte occasion,
s'est efforcee a les faire triompher," it could have no hesitation
in recognising their justice and utility.

The Government of Brazil pointed out that the signatory
Powers ought to complete their beneficent work by declaring
that merchant vessels, without exception, should, under the
protection of maritime law, be immune from the attacks of
men-of-war. This declaration was made at the instance of
the United States.

It is to be noted that the invitation to adhere was given to
all Powers which had not been represented at the Congress, no
distinction being made between maritime and non-maritime
nations. In the same way, although the invitation to attend
the deliberations of the Naval Conference in London, in 1908,
was limited to the great maritime Powers — Germany, Spain,
France, Italy, Russia, Japan, Austria, the United States, and

^ The terms in which the adherences of the different Powers were
given will be fotind in Docximent No. 19.

* It appears from the correspondence relating to the Franco -Prussian
War in 1870, that a law had been passed in Prussia giving effect to the
Declaration. M. Delbriick, the President of the Federal Office, " stated
that there was no occasion to repeat the recognition by Prussia of the
principles agreed to under Protocol 23 of the Treaty of Paris, for they
have been embodied and published as a law in Prussia, giving^hem thereby
the validity of an act of legislation." — {Extract from despatch of Lord A.
Loftus to Earl Granville, Berlin, 23rd July 1870.)

186 The Declaration of Paris

afterwards Holland — all other Powers were to be invited to
adhere. On this certain questions of principle of considerable
importance arise.

In paragraph 5 of the despatch of the 27th February 1908/
conveying the invitation to this Conference, a sentence occurred
which is liable to misconstruction : " The rules by which
appeals from national Prize Courts would be decided affect
the rights of belligerents in a manner which is far more serious
to the principal naval Powers than to others." Whether this
was a formal recognition of the fact that the right of a belligerent
State is higher in the scale of values than the right of the neutral
merchant, or was intended to be no more than an indication
that among naval Powers the rules, when formulated, would
affect the greater naval Powers far more seriously than the
smaller ones, need not be determined. The fact is that only
naval Powers who might be described as potential belligerents
took part in the discussions, and the potential neutrals, although,
like Sweden and Denmark, some of them were maritime Powers,
were not invited to the Conference, but were only to be asked
to adhere. Looking at the question quite dispassionately, it
is impossible to deny that it would have been better for such
professional neutrals as the Scandinavian Powers to have
joined in the discussion.

It is true that the Powers who were represented considered
all the questions from the twofold point of view, as belligerents
and as neutrals in future wars ; but the impression left on the
mind after reading this despatch is that the code of rules to
be drawn up by the Conference would practically amount to
a statement of the manner in which these nations, when belli-
gerent, intended to deal with the neutrals during war. The
motive underlying the calling of the Conference was to arrive
at an agreement as to what are " the generally recognised
principles of international law," or, in their absence, what
are " the general principles of justice and equity " applicable in
given circumstances ; but the right to adhere to an elaborate
series of complicated rules, upon many of which, as it turned
out, the Powers represented at the Conference could not come
to an agreement, was not a satisfactory substitute for taking
a share in forming them. The result, if the question had gone
further, might have been that certain rules of naval policy and
practice agreed to by certain Powers, to be acted on by them
as belligerents, might not have been accepted by other Powers
not parties to the Declaration, when neutral.

^ " Correspondence and Documents respecting the International Naval
Conference held in London," Misc. No. 4, 1909.

The Powers which Adhered to the Declaration 137

In the absence of an unanimous statement of represented
Powers, concurred in by all non-represented Powers, that a
certain rule was a rule of international law, or was " in accord-
ance with the general principles of justice and equity," the
result of the Conference could only have been a convention
to which many Powers were parties, but to which some Powers
were not. It is difficult to see how, in these circumstances, the
property of the subjects of a neutral non-adhering Power could
have been legitimately affected.

It is constantly overlooked that all the rules of naval policy
and belligerent practice are two-edged, affecting the neutral as
well as the enemy ; and therefore non-maritime Powers are
entitled to a voice in their settlement, because, though they have
no ships which may be searched or seized at sea, their subjects
may have property on board ships of other nationalities which
are liable to confiscation. The adherence of Switzerland and
of all the Balkan States was as necessary to the Declaration
of London as that of the Scandinavian Powers, or of France
or England.

The fact is that there is no method by which the rules of
" international law," as they are commonly understood, can
be forced on non-adhering Powers. One State by standing out
can wreck the aspiration of the mass. The criticism which,
with great deference, I make of the proceedings of the London
Conference is that, in spite of the reference to " the general
principles of justice and equity " in the invitation, the application
of these principles to secondary details was considered rather
than the nature and quality of the principles themselves.
There was no statement of, much less was there any attempt
to enunciate, those " wide and deep foundations " of the Law
of Nations of which Lord Palmerston wrote in his despatch to
Lord Clarendon of 13th April 1856. Until these primary prin-
ciples are determined, agreement as to secondary rules based
on them is unlikely. It was difficult without concessions to
get ten Powers to agree to such a simple rule as that " a vessel
carrying contraband may be condemned if the contraband, as
reckoned either by value, weight, volume, or freight, forms
more than half the cargo " (Art. 40 of Declaration of London) ;
there is little hope of forcing that rule on twenty others who
have not taken part in the discussion. There is great hope
that an agreement might be reached as to what are the funda-
mental principles on which much more complicated rules ought
to be based.

This brief critical survey of the method adopted at the
London Conference has an obvious bearing on the great ques-

188 The Declaration of Paris

tion of the moment — the settlement of principles, which all
hope will be the ultimate settlement, to be presently under-
taken at the coming Conference. I now revert to the question
of the adherences to the Declaration of Paris.

Owing to the rigorous condition attached to adherence, that
all the four principles must be accepted as one and indivisible,
three States, it is commonly said — but in reality four — stood
out : Spain, Mexico, and Venezuela, ^ each of which declined to
accept the abohtion of privateering ; and the United States.
Spain ultimately adhered on the 18th January 1908, and Mexico
on the 13th February 1909. The United States has still not
adhered ; nor, it is believed, has Venezuela.

But, even with these reservations. Count Walewski was not
justified in reporting to the Emperor ^ that " tous les Cabinets
ont adhere sans reserve," for the list of adherences which he
gave, and which is, with some slight modifications, the same
as that given in the State Papers and Hertslet's Commercial
Treaties, does not include many of the South and Central
American States. Nor are any of the countries included in
which foreign jurisdiction is exercised, such as China and
Persia. Japan adhered on the 30th October 1886,^ as soon as
she had recovered her independence.

Some of the American Republics adhered in an indirect
manner later, by means of treaties with Italy, and some
with France. These will be referred to presently.

A graver omission was the failure to provide for certain
processes constantly in operation in the world's government —
absorption and disintegration of old States, and the formation
and recognition of new States. When Sweden and Norway
separated, both Powers declared that henceforth they would
hold themselves severally responsible for all conventions and
obligations concluded prior to 1905.^

All the German States adhered, but there does not appear
to be any record of the formal adherence of the Empire.^

* Venezuela is not usually referred to as a non-adherent Power, but
the statement in the text is made on the faith of the Table of Adherences
in Sir Edward Hertslet's Map of Europe by Treaty, vol. ii. p. 1284. As
Librarian of the Foreign Office he is not likely to have made a mistake
in such a matter.

' Document No. 19.
' Docimaent No. 19.

* State Papers, vol. xcviii. p. 834.

" In the diplomatic correspondence of 1870, already referred to (p. 136),
there is another letter, from Count Bismarck to Lord A. Loftus, stating
that the laws laid down in the Declaration " are legally valid throughout
the whole of the States of the North German Confederation" {State
Papers, vol. Ix. p. 924).

The Powers which Adhered to the Declaration 139

So all the Italian States adhered, but there is no record in the
State Papers of Italy's adherence.^

Among the new or newly recognised States there is no
record of the adherence of any of the Balkan States subsequent
to their independence. In regard to these, the question was
neither difficult nor new. When in the extension of her Empire
Great Britain undertakes the obligations of a new Protectorate,
a common form has come to be adopted in the Order in Council
applying to it certain standard Imperial statutes, which con-
tain the necessary authority for this expeditious procedure —
such are the Foreign Enlistment Act, 1870, the Fugitive
Offenders Act, 1881, and many others. It is curious that in
spite of the importance which has been attached to it as a docu-
ment of international obligation, some such common form was
not recommended for adherence to the Declaration of Paris in
the constitutions of new States.

The point has also been overlooked in the British Protectorate
Orders in Council ; and thus Zanzibar and other British Protecto-
rates have not adhered. And yet, constitutionally, they are
independent States, whose foreign relations are under the guid-
ance of their Protecting Power, Great Britain : and the mer-
chants of Zanzibar are as entitled to a voice, even though it be
vicarious, in questions affecting, say, their consignments of
ivory, as the merchants of Switzerland whose consignments of
clocks are affected.

The adherences with which we have been dealing are usually
assumed to have been to the Declaration as a whole — that is
to say, to the four principles, together with the supplementary
conditions, — that they are one and indivisible, and that no treatj?^
which was not based on them in their entirety should be entered
into by any adherent Power. Some of the letters in which
adherence was notified contained express reference to these

^ This statement is borne out, up to 1861, by correspondence which
passed between Washington and Turin in that year, relating to a proposed
convention between the United States and Italy for the suppression of
privateering and the immunity of private property at sea. The Italian
Minister pointed out that his Government had not yet become a party of
the Convention of 1856. He had no objection to negotiations proceeding
based on the American proposals, but he intimated that the final decision
of the Italian Government would be influenced by that of England and
France. Later in the year, in September, the American Minister was
instructed to ascertain whether Italy would enter into negotiations for
the accession of the United States to the Declaration of Paris, and, if so,
he was to enter into a convention in the form of the original proposal.
In November the matter was dropped in consequence of the refusal of
the British and French Governments to accept the adherence. — {State
Papers, vol. li. p. 107 et seq.)

140 The Declaration of Paris

supplementary conditions. But Lord Clarendon's mediation
principle lay outside the Declaration, and an express adherence
to it Avas necessary. Some States accepted it and some did
not. I have availed myself of the list of States which adhered
given by Sir Edward Hertslet in his Map of Europe by Treaty,^
and have printed it among the Documents. ^

Indirect Adherences to the Declaration.
(A) By Treaty with Italy.

Reference has been made to certain treaties concluded with
Italy and France, which, although they were not technically
adherences to the Declaration by the other Contracting Parties,
would appear, by the adoption of the four principles, to have
achieved the same result.

Taking those concluded with Italy first in order, in the
treaties with Honduras (1868) and Guatemala (1868) the article
dealing with the subject is stated to be " as a complement " to
the Declaration : for this reason, that in addition to the four
principles " which are accepted without reservation by the
two Parties in their mutual relations," the immunity of private
property is also accepted " in case of the misfortune of a war
between them " ; but it is subject to the maintenance of the
right of preventing, " by a suitable manifesto," all trade and
communication between any part of the shores of their own
territory and merchant ships navigating under a hostile flag,
and of confiscating ships transgressing the interdiction.

The treaty with Siam (1868) " recognised the principles "
established by the Declaration, and followed the same lines as
the previous treaties.

In the case of the Sandwich Islands (1863), the four principles
are adopted simply as " enunciated in the Declaration." In
the case of Salvador (1860), the principles are adopted in the
mutual relations of the two Parties without special reference
to the Declaration. They are only to be applied to the Powers
which recognise them equally ; this, of course, includes all the
adherent Powers.

In the treaty with Venezuela (1861) and with Costa Rica
(1863) a different form is adopted. " The two High Contracting
Parties adopt in their mutual relations the principle that the
flag covers the merchandise " ; but it is limited in its appHca-
tion to enemy goods (and persons) on board neutral ships.

1 Vol. ii. p. 1284. 2 Dociiment No. 19, at end.

The Powers which Adhered to the Declaration 141

XIV. The two High Contracting Parties adopt in their mutual
relations the principle that the flag covers the merchandize. If one of
the two Parties should remain neutral, while the other is at war with a
third Power, the merchandize carried by the neutral flag shall be reputed
neutral, even though belonging to the enemy. Nevertheless all articles
reputed contraband of war are excepted.

It is likewise agreed between the Contracting Parties that the
freedom of the flag secures the freedom of persons, and that individuals
belonging to the hostile Power, found on board a neutral vessel, cannot
be made prisoners, unless they be military in service of the enemy.

The same principle is adopted in the treaty with Mexico
(1870).

The conclusion of these three treaties seems to be at vari-
ance with the stipulation made by the declaring Powers, that
no treaties should be signed by any adhering Power " qui ne
repose a la fois sur les quatre principes."

In the treaty between Italy and Uruguay (1866) the subject
is not referred to ; but Art. XI. recognises broadly the right
of one party to continue its commerce and navigation with the
enemies of the other party, except to blockaded ports.

(B) By Treaty with France.

Two of the South American Republics concluded treaties with
France on similar lines to those with Italy above referred to.

In the case of Salvador (1858), the four principles are adopted
simply, with an extension to persons, and, as in the case of the
Sandwich Islands treaty with Italy, they are only to be applied
to the Powers which recognise them equally, thus including all
the adherent Powers.

In the case of Peru, the principles are adopted with express
reference to the Declaration, but it is followed by an article
explaining their application in detail.

In the case of the treaties with the Dominican Republic
(1852), Honduras (1856), and New Granada (1856), the principle
that the flag covers the merchandise is adopted to its full extent ;
that is to say, neutral property on enemy ships is to be treated
as enemy.

The following is the article in the New Granada treaty : —

XX. Les deux Parties Contractantes adoptent, dans leurs rela-
tions mutuelles, le principe que " le pavilion couvre la marchandise."
Consequemmentsi I'une des deux Parties reste neutre quandl'autre est en
guerre avec une autre Puissance, les marchandises couvertes du pavilion
neutre seront aussi reputees neutres, meme quand elles appartiendraient
aux ennemis de I'autre Partie Contractante. II est egalement convenu
que la liberte du pavilion assure aussi celle des personnes, et que les

142 The Declaration of Paris

individus appartenant a une Puissance ennemie, qui seraient trouves a
bord d'un batiment neutre, ne pourront pas etre faits prisormiers, a
raoins qu'ils ne soient railitaires et pour le moment engages au service
de I'ennemi. En consequence du meme principe sur I'assimilation du
pavilion et de la marchandise, la propriete neutre trouvee a bord d'un
batiment ennemi sera consideree comme ennemie, a moins qu'elle n'ait
ete embarquee sur ce navire avant la declaration de guerre, ou avant
qu'on en ait connaissance dans le port d'ou le navire est parti.

Les deux Parties Contractantes n'appliqueront ce principe, en ce
qui conceme les autres Puissances, qu'a celles qui le reconnaitront
egalement.

It is difficult to account for this article in the last two
of the three treaties mentioned above, as they were ratified
after the Declaration of Paris was signed. They not only
infringe the stipulation that no treaty should be signed by
an adhering Power which was not based on all four principles,
but they also contain the " enemy ships enemy goods "
principle, which was in direct opposition to the 3rd principle
of the Declaration.

This article is to be found in many of the earlier treaties
between France and the South American Republics : — e.g.
Ecuador (1843), Guatemala (1848), Costa Rica (1848), Vene-
zy£la (1843).

The Refusal of the United States to Adhere.

The United States declined to adhere, answering the invita-
tion in a long memorandum from Mr Marcy, the Secretary of
State. This should be known as " the Second Marcy Note," ^
in order not to confuse it with the First Note sent in 1854 ^
on receipt of the Declaration to the neutrals at the beginning
of the war.

It may be divided roughly into two parts : that in which it
sets out very clearly and remorselessly all the weak points of
the Declaration ; and that which is devoted to the advocacy of
privateering, and the immunity of private property at sea.

The Note sets out with a grievance, and it can hardly be
denied that it was a very real grievance. The United States
Government had, over two years previously, as indicated in
the First Marcy Note, submitted the 2nd and 3rd principles
— that the neutral flag covers enemy goods ; that neutral goods

1 Document No. 21. * Document No. 8 J.

The Refusal of the United States to Adhere 143

are not seizable on enemy ships — ^to the maritime Powers in
order to press their adoption as permanent principles of inter-
national law. Four Governments had accepted them, but others
had preferred to wait till the termination of the war. But the
action of the plenipotentiaries at Paris had annihilated these
negotiations by making the four principles indivisible, and pro-
hibiting the adhering Powers from entering into any convention
on the subject of neutral rights which was not based on them.

Had the intentions of the Congress been more carefully
drafted, it is probable that these two subordinate conditions, for-
mulated in the 24th protocol,^ would have been included as part
of the Declaration. But the point taken by the United States
was not sound, for the 24th protocol was as effective, or as
ineffective, as the 23rd ; ^ and, therefore, no nation was free to
decide whether it would accede entirely or partially to the actual
Declaration. But the result of the condition of indivisibility
was that a nation was debarred from the right of accepting the
two propositions proposed by the United States, establishing
the freedom of the cargo irrespective of the fate of the ship,
thereby assuring many advantages to neutral commerce which
could only be obtained subject to too great a sacrifice — the
abandonment of a right hitherto never contested, which might,
so the United States contended, be regarded as essential to the
freedom of the sea, privateering.

It was further pointed out that the 4th principle — that
blockade to be recognised must be effective — hardly came within
the class of questions with which the Congress was concerned,
for this had not recently been regarded as uncertain or as being
the cause of " deplorable conflicts." The disputes, it was insisted,
which had arisen as to blockade were always as to the facts,
not as to the law. What is meant by a force really sufficient to
prevent access to the enemy's coasts had been frequently and
vehemently discussed, and the Declaration, by simply repeating
an uncontested principle, had not removed any of the embarrass-
ment of determining what is a sufficient force to make a blockade
effective. This question was, therefore, left as open after the
Declaration as it was before. Nations which had resorted to
" paper blockades " had rarely, if ever, attempted to justify
them on principle ; had generally admitted their illegality,
and paid compensation to the injured parties.

Special stress was then laid on the importance of the right
of privateering, which was as justified by usage as the right
to use men-of-war, or as any other principle in the maritime
code. Few nations had ever hesitated to avail themselves of

^ Document No. 17.

144 The Declaration of Paris

it ; and in two treaties only had the contracting parties agreed
to abstain from their use — in 1675, between Sweden and the
United Provinces, though, when they were at war a short time
afterwards, the provision was ignored ; and in 1785, between
the United States and France : but the clause was omitted when
the treaty was renewed in 1799. During the last fifty years
no step had been taken to abolish the right ; and it was, the
United States considered, much to be regretted that the Con-
gress, in assuming to put an end to differences of opinion between
neutrals and belligerents, should have destroyed a principle
as to which there was no difference of opinion. The Congress
should have foreseen that, while in regard to three of the prin-
ciples there would have been no serious objection from any side,
in regard to the fourth there would have been a vigorous oppo-
sition. The United States relied on Valin's justification of the
right, published in 1681, and Pistoye and Duverdy's, published
in Paris at the very time the Congress was sitting. Reasons
should have been given for insisting on this principle and
altering the law, though probably the Congress had adopted the
common ones generally advanced, such as that the extension
of Christianity had mitigated the severities of war ; that
Governments wage war, and individuals have no right to take
part in it unless authorised by their Government.

The dominating principle in land warfare, the Note continued,
is that non-combatants and their property must be respected ;
pillage is against the usages of to-day. It was presumed that
the keen desire to improve the cruel customs of war by exempting
individual property at sea from enemy seizure, as it is exempt
on land, was the principal reason why the Congress had declared
privateering abolished. On this point the President's views
are expressed in his message to Congress of the 4th December
1854, when he dealt with the proposition which had been made
to abolish privateering.^ He pointed out that the proposition
was based on the principle that the private property of non-
combatants ought to be exempt from the ravages of war. But
the abolition of privateering would carry us very little way
towards the establishment of this principle, which would also
exempt private property from molestation from men-of-war. If
the principal Powers of Europe would agree to the immunity of
private property at sea, the United States would agree to the
abolition of privateering. Mr Marcy was authorised to assent
avec empressement to the principle which exempts private
property on sea as on land. But the proposition to abandon
privateering at sea could no more be accepted than one oblig-

^ Document No. 15.

The Refusal of the United States to Adhere 145

ing a State to renounce volunteers on land. If private property
might still be seized by warships, it was difficult to see why
it might not be seized by privateers, which, after all, are only
another branch of the public armed forces of the State. No
sane principles of logic could justify the distinction ; no one
was capable of drawing the line between them. The abuses of
privateering had been exaggerated ; for no nation which author-
ised privateers would omit to take necessary steps to prevent
abuses. If the distinction were established, it would rest with
each nation to declare which vessels are war-vessels ; the
predominant maritime Powers would make this distinction to
their own advantage, and weak nations should firmly resist
the creation of such a power, and interpose barriers to en-
croachments of this nature. The United States considered the
maintenance of large armed maritime forces as dangerous to
the national prosperity, and a danger to civil liberty ; their cost
as a burden to the people, and a constant menace to peace.
A considerable army always ready for war is a powerful tempta-
tion ; the United States policy had always been against it, and it
would not consent to a change in international law which would
compel it to maintain in peace a powerful regular army or navy.
If forced to maintain her rights by arms she would limit herself
to relying on voluntary troops by land, and on the merchant
marine for the protection of her commerce. In resisting the
attempt to alter maritime law the United States laid its views
before all those nations who did not look to become dominating
maritime Powers, and whose interests were the same as those of
the United States. The protection of commerce and the main-
tenance of peaceful international relations cried aloud to them
as to her to resist the change proposed in the Law of Nations.
For them the abandonment of privateering would be accom-
panied by disastrous consequences, without any corresponding
advantages. It was not surprising, therefore, that powerful
maritime nations desired to see it abolished ; for that nation
which had a decided naval superiority would be the absolute
master of the ocean. Such a Power at war with a nation
inferior at sea would not have to trouble itself to look after
its commerce, but only to hunt the enemy's ships, which could
easily be held in check by half its naval forces ; the other half
would sweep the ocean for its enemy's commerce. This would
be worse if the superiority at sea were divided between three or
four Powers. The fatal consequences of any great inequality
in naval forces would be redressed by privateers. The ocean
is the common property of all nations ; and instead of lending
its aid to a measure which would probably give to a few, or

146 The Declaration of Paris

perhaps one, a preponderance on the seas, every State should
obstinately use all means in its power to defend its common
heritage. A Power predominant on the ocean is even more
dangerous than one predominant on land. The damage result-
ing from the abandonment of the command of the sea to one
or more strong naval Powers would arise chiefly from the
liabiHty of private property at sea to seizure. The President,
therefore, proposed to add to the proposition abolishing priva-
teering the following, " and private property of the subjects
of one belligerent Power shall not be seized by the vessels of
the other, unless it be contraband." Thus amended, the pro-
position, as well as the three others, would be accepted. He
adhered to the other three independently of the first, if the
amendment were not accepted. He thought there could be
no serious opposition to his proposal. If the amendment were
not adopted, the signatory Powers should agree as to what treat-
ment they would accord to privateers coming to their ports.
The United States would claim that consideration which they
accorded, and which was accorded by international law before
the Congress tried to alter it.

Then followed a suggestion that the Plenipotentiaries should
consider, as a kindred subject, the claims of the neutrals to a
modification, if not to the abandonment, of the doctrine of
contraband of war. Nations which preserve their peaceful
relations ought not to be injured in their commercial relations
by those who have chosen to go to war, so long as neutral
citizens do not compromise their neutral character by direct
intervention in military operations. The law as to sieges and
blockades seemed sufficient to satisfy all the demands of
belligerents. If this suggestion were adopted and really
observed, the right of search, which had been the cause of so
much inconvenience and damage to neutral commerce, would
be limited to cases of reasonable suspicion of trading with
besieged or blockaded places. Humanity and justice demanded
that the calamities resulting from war should be strictly limited
to the belligerents, and those who voluntarily participate in it ;
and, on the other hand, that neutrals who abstain in good faith
from this participation should be left free to carry on their
ordinary commerce with either belligerent, without restrictions
in respect to the articles dealt with.

This document has a very definite relation to the discussion
which shortly afterwards took place between the United States
and the British Government when the question of the adherence
of the United States to the Declaration of Paris was revived.

The Refusal of the United States to Adhere 147

But, beyond this, it has an importance in what may be called
the intellectual development of the subject. No one can deny
that there is considerable force in the reasoning which supported
privateering ; it is put forward with confident and characteristic
assurance ; and it is worthy of note that belief in the system
did not immediately die out in England with the doctrinaire
statement of the Declaration that " privateering is abolished."
In 1875, in the Preface to his edition of Ward's Treatise on
Maritime Laiv, Lord Stanley of Alderley, a distinguished peer
who took part in the debate of 1856, and President of the Board
of Trade, regretted the decision of the Congress of Paris on this
matter. But the United States Government overlooked the
real reason which had compelled the decision of the Congress,
and which could no longer be ignored : that, however logically
defensible in theory, privateers had become the scourge of the
world's wars. And as for its simple faith in punitive measures,
no country was more willing to adopt them, or to acknowledge
their failure, than England. Chatham had tried them during
the Seven Years' War, when " the action of our privateers was
outrageous beyond endurance," when " there was a swarm of
smaller privateers in the Narrow Seas who were not to be dis-
tinguished from pirates." Nothing but the most strenuous
exertions, penalties imposed by administrative action, penalties
by Act of Parliament, cajolery by Government, pay in return
for submission to naval discipline, restoration of prizes, enabled
him to pacify the neutrals.^

Nor does this exhaust the importance of the document.
It deals, but as subordinate to the main proposition, with the
doctrines of immunity of private property at sea, and the
assimilation of the principles of sea and land warfare ; and
indicates the re-emergence from the Napoleonic past, in the
language of the Napoleonic speeches, of these much more sweep-
ing doctrines which, by their plausibleness, seemed specially
suited to please the humanitarian mind. They thenceforward
figured largely in all debates in Parliament.

So much emphasis is laid in this Marcy Note on the principle
of immunity of private property at sea that it is important to
discover when the United States first adopted it. We have
a fairly certain guide in the treaties which had been concluded
at this period on its own initiative.

There is no reference to it in the First Marcy Note. The
United States was then concerned principally with the permanent

^ See Sir Julian Corbett's England in the Seven Years" War, vol. ii. p. 6.

148 The Declaration of Paris

adoption of " free ships free goods," and expressed the hope
that the provisional adoption of it by the Allies for the purposes
of the war might lead to the much -desired result. To this end
it had embarked on negotiations with the Powers, proposing
that conventions should be entered into recognising the freedom
both of enemy goods on neutral ships and of neutral goods
on enemy ships. Four Governments had accepted, but others
had preferred to wait till the termination of the war. Three
of these consenting Powers must have been Russia, the Two
Sicilies, and Peru, with which treaties were concluded on the
22nd of July 1854, 13th of January 1855, and 22nd of July
1856 respectively. 1 The fourth is uncertain, as no other treaty
is mentioned in the Collections as having been concluded by
the United States at this period. M. Drouyn de Lhuys refers
in his Memoire to the fact of negotiations being in progress in
1854, and threatened to revive them if an agreement were not
reached with the British Government. ^ It was suggested by Lord
John Russell, in a despatch in 1861,^ that the proposal made by
the United States to France included the adoption of immunity
of private property. The treaty was not, however, concluded.

These three treaties are all on the same model. The two
principles are laid down, and the parties agree to apply them —
that is, when they are at war — to all Powers which adopt them
" comme permamente et immuable." Further, they reserved
to themselves the right to agree later (ulUrieurement), according
as circumstances may require, on the application and extension
which should be given to these principles. Nevertheless they
declared that they would adopt them as rules whenever the
question of appreciating the rights of neutrality arose. It
was further agreed that all nations which should agree to
observe these principles by a formal declaration, should enjoy
the rights resulting from this accession in the same manner as
the Contracting Parties to the treaties. Steps would be taken
to bring about the accession of other Powers.

The two principles are enunciated in these treaties in their
simple form, and there is no suggestion of the larger principle
of the general immunity of private property at sea. It would
seem, therefore, that the doctrine was not advocated by the
United States Government till the Second Marcy Note was
presented to the Powers in 1856.

On 14th July 1857 a motion was made by Mr Lindsay for
copies of Mr Marcy's letter to the French Government upon

» Document No. 16. . ' See p. 66.

» Document No. 24 (1).

The Refusal of the United States to Adhere 149

the subject of privateering, and of any other correspondence
between the British Government and other Powers on the
same subject. There was an obvious objection to laying on
the table of the House correspondence which had passed be-
tween two foreign Powers, and on Lord Palmerston's suggestion
the motion was withdrawn. In view of a certain speech which
he had made at Liverpool the previous year, after the conclusion
of peace — which was referred to in a debate which occurred
some years afterwards, to be dealt with later — it is important
to note his statement on this occasion, that the proposal to
exempt private property at sea from capture required long
and mature consideration. But it appeared that the new
Government of the States had intimated that no answer to
the Marcy Note was asked for, and therefore communications
on the subject had been suspended. The reason for its with-
drawal was not stated.

Lord Palmerston added, with regard to the other question
raised by the Note, that it was difficult to apply the same
rules to sea as to land warfare, more especially as the practice
in land warfare varied in different countries.

i86o-i862

The Report of the Horsfall Commission on
Merchant Shipping, 1860.

The direct discussion in Parliament of the Declaration of
Paris ceased for some time after 1857 ; but the interest of the
shipping world in the question naturally persisted, and a Select
Committee of the House of Commons was appointed to report
generally on questions affecting merchant shipping, among
them belligerent rights at sea. Mr Horsfall was appointed
chairman. The Report was issued in 1860, and the section
in which this question is examined ^ shows the trend of the
commercial mind at that period, more especially in regard to
the refusal of the United States to adhere to the Declaration.
The Committee considered that the refusal was not surprising,

for the United States has obtained a recognition of the
rights of neutrals for which she contended throughout a
former period of hostilities ; and Great Britain has sur-
rendered her rights without any equivalent from the United
States. Our shipowners will thereby be placed at an im-
mense disadvantage in the event of a war breaking out
with any important European Power. In fact, should the
Declaration of Paris remain in force, during a period of
hostilities, the whole of our carrying trade would be inevit-
ably transferred to American and other neutral bottoms.

This opinion was supported by reference to the fact that

at a recent period, upon a mere rumour of war in Europe,
in which it was apprehended that Great Britain might be
involved, American and other neutral ships received a
decided preference in being selected to carry produce from
distant parts of the world to ports in Europe, whereby
even in a period of peace British shipowners were seriously
prejudiced.

^ Docviment No. 23.
150

Report of Horsfall Commission on Merchant Shipping 151

The conclusion arrived at was that international law
cannot remain in its present state ; for if England were involved
in any great European war, the United States would almost
certainly be neutral, " and then our great maritime rival would
supplant us in the carrying trade."

A somewhat curious state of things was supposed to have
come about. " International law " had been remodelled by
the adoption of the principles of the Declaration, but the
United States had stood out ! This would, the Committee
thought, in the event of war, " produce complications highly
disastrous to British interests."

An alternative remedy was proposed : either there must be
complete immunity for all merchant ships and their cargoes
during war, or

we must revert to the maintenance of our ancient rights,
whereby relying upon our maritime superiority, we may not
merely hope to guard unmolested our merchant shipping
in the prosecution of their business, but may capture
enemies' goods in neutral ships, and thus prevent other
nations from seizing the carrying trade of the kingdom
during a state of hostilities.

The question needed further consideration ; but as matters
stood the Committee were in favour of the first alternative,
because they believed that " in the progress of civilisation and
in the cause of humanity, the time had arrived when all private
property, not contraband of war, should be exempt from, capture
at sea."

There seems to be a hiatus in an argument which found
that British interests, the progress of civilisation, and the cause
of humanity all depended on the same principle which Bonaparte
adopted in his effort to destroy British commerce.

The Committee was largely composed of shipowners whose
interests centred in the carrying trade ; but there seems to have
been some misconception as to the meaning and effect of the
Declaration, and as to the consequences of the United States
standing out. Her position was a curious one. If she herself
went to war she would not be expected to observe the principle
" free ships free goods," though she had repeatedly expressed
belief in it, and her willingness to act on it — as, indeed, she did
during her war with Spain in 1898. But in the event of England
going to war with another Power, the United States remaining
neutral, the refusal to adhere would deprive her of the benefit
of the principle.

According to the then current interpretation of the Declara-

152 The Declaration of Paris

tion (insisted on by Lord Palmerston in 1862), it " related
entirely to the relations between belligerent and neutral," and
not to the relation of belligerents to each other. If this were
true, the position of the United States in such a war, even
assuming the enemy to be an adherent to the Declaration,
would be far from satisfactory. Her ships carrying enemy pro-
perty would be liable to be seized by England ; possibly also
by the other belligerent. It is difficult, therefore, to follow the
contention that she would obtain the carrying trade from other
neutrals to the enemy. Taking, however, the true view of
the Declaration, that it affects the relations of belligerent to
belligerent as well as of neutral to belligerent, then the United
States would obtain the privilege of free carriage of enemy
goods, and the resultant carrying trade through the adherent
enemy, although she herself had not adhered. But this destroys
the intention of adherence, for the United States would get the
benefit without it. It seems probable that the Committee
took this view of the Declaration, though they did not express
themselves very clearly. The value of their opinion, there-
fore, depends on the very questionable assumption that when
we are at war it is possible for us to obtain some share of the
carrying trade of the world, either of neutral to neutral, or of
neutral to the enemy.

The shipowners deprecated the idea that they spoke only
in their own interests, recognising that the interests of the whole
community are involved in the prosperity and security of our
merchant shipping. But the national interest in merchant
shipping during war is a far larger question ; so momentous
are the decisions which must be taken in regard to it, that we
now see that the supreme direction and control of it in all its
parts, whether for the purpose of transport of troops and muni-
tions, or for maintaining the national supply of necessaries of
life, or for preserving our friendly relations with the neutrals,
must be in the State. We now realise that the Merchant Service
is but a branch of the Royal Navy. From this point of view the
shipowner and the interests of his shareholders stand in no more
favourable position than the proprietor of any other means of
transport, or than the owner of the goods transported. On this
larger question the Report of the Committee throws no light.
War had not at that time assumed sufficiently gigantic pro-
portions to make men realise its paramount importance.

Questions and Answers in Parliament, 1861 153

Questions and Answers in Parliament, 1861.

On the 18th November 1861, Mr Horsfall asked the Govern-
ment whether steps had been taken to carry out the recommenda-
tions of the Committee.^ The answer was apparently in the
negative, for Lord John Russell said that as the Treaty of Paris
had been concluded the discussion with the United States, appar-
ently on the Second Marcy Note, had not been continued. It had,
in fact, been discontinued at the express request of the United
States Government. But Lord John Russell took occasion to
discuss the recommendations of the Committee, John Bright
ineffectively raising the point that a discussion of such a nature
was not in order in answering a question. Lord John said,
when the matter was under discussion with the United
States, that Lord Clarendon appeared to be unfavourable to
the immunity of private property at sea. The United States
seemed now to have gone a step further, contending that the
blockade of commercial ports or the interruption of trade by
blockade ought not to be permitted. In Lord John Russell's
opinion this would compel the belligerent with the superior
naval power to forego the advantages of her navy, and thus
prolong the war, and lead to the employment of the enemy
mercantile fleet for purposes of war. He recommended, there-
fore, the greatest caution in taking any final step with regard
to the question.

Early in April 1861, the Civil War in America broke out.
On the 15th, President Lincoln called out the militia in order
to suppress the combination in the Southern States which
had opposed the execution of the laws ; on the 17th, Jefferson
Davis issued a proclamation inviting applications for letters
of marque and reprisal ; and on the 19th, Lincoln proclaimed
the blockade of the ports of the Southern States, " in pursuance
of the laws of the United States and of the Law of Nations
in such case provided." ^ On the 2nd and 6th May questions
relating to the blockade were asked in the House of Commons.
Lord John Russell said that this raised points in the Law of
Nations so new that the opinion of the Law Officers had been
asked for, and we were still in doubt as to what alterations
were to be made in the Law of Nations in consequence of the

^ Document No. 23.

* Mountague Bernard, Neutrality of OrecU Britain during the American
Civil War, p. 80.

154 The Declaration of Paris

Declaration of Paris. On the 7th May, Mr Horsfall having given
notice of a motion as to the action to be taken on the Report
of his Committee, Mr Walpole suggested its withdrawal on the
ground that the discussion at that time would not be in the
public interest. Lord Palmerston agreed that a postponement
was advisable. The Law Officers had advised that the Southern
States should be treated as belligerents. He added that further
questions arose out of that question, with respect to which the
Government was still in doubt — repeating Lord John Russell's
words — " as to what are the alterations which are to be made
in the Law of Nations in consequence of the Declaration of
Paris." Those questions were of a difficult and intricate
nature, were still under the consideration of the Government,
and would be further considered before any declaration was
made to other Powers. Mr Horsfall thereupon agreed to post-
pone his motion.

Ill

The United States and the Declaration of Paris
during the Civil War, 1861.

During the American Civil War of 1861, the parts which the
different nations had been accustomed to play were reversed.
The decision of the European Powers to recognise the Confederate
States of the South as a belligerent made their position funda-
mentally different from that occupied by the non-belligerent
States during the American Rebellion. So much turns on this
that it will be well to made the point clear. Mr Hall ^ devotes
an interesting chapter to the subject, and to an examination
of the precedents, as also Sir William Harcourt in the first
series of Letters of Historicus. The point which specially
concerns us is that recognition of rebels as belligerents involves
two important consequences : the acquisition by them of the
rights and duties of a belligerent, and by the non-belligerents
of the rights and duties of neutrals — and these consequences
are made to depend on the decision of the non-belligerents.
They may, and in fact do, ignore the wishes, it may be the
rights, of the parent State, which may still call the seceding
party " Rebels." The important fact is that with the recognition
of them as belligerents their own status of " neutral " comes
into existence. Otherwise there are no neutrals in a civil war.

It is obvious that a serious question is thus raised between

^ International Law, 7th ed., pt. i., chap. i. pp. 39-43.

The Declaration during the American Civil War 155

the parent State and the non-belligerent Powers. It led to
great bitterness in the discussions between the Federal Govern-
ment and the European Powers, represented by Great Britain
and France. It might lead to war. The conclusion of treaties
of alliance with rebels might be argued to be a legitimate form
of recognition, might equally be a legitimate cause of war. It
was, in fact, one of the reasons which led to the war between
England and France at the time of the American Rebellion ; it
was the assigned cause for the English declaration of war against
Holland. That was not, however, " a case of recognition "
of the American Colonists as belligerents — a question which
does not seem to have been raised ; it was a recognition of their
independence. The greater included the less. But whereas it
seems to be agreed that the recognition of rebels as belligerents
must be accepted by the parent State, which is bound to submit
to the consequences, their recognition as an independent State
need not be acquiesced in. Strictly speaking, it puts the re-
cognising Powers in pari delicto, and would justify their being
treated as enemies, to the ignoring of their pretension to be
neutrals. This was the position assumed by Great Britain
throughout the whole of the War of Independence ; the North
America Act ^ declared that the ships and cargoes of those who
traded with the rebel Colonies would be treated as belonging
to enemies.

In one of the despatches from Paris, to be presently re-
ferred to, the French Government asserted that Great Britain
" although treating at the commecement of the American War
letters of marque as piracy, had, after a time, recognised the
belligerent rights of the States in rebellion against her." ^ This
assertion was not replied to, but its accuracy may well »be
doubted.

To revert to the Civil War. With the recognition of the
Confederate States as belligerents the European Powers became
neutrals, and looked, on behalf of their merchants, to reap the
benefit of the aspirations which had been expressed at the
Congress of Paris. The point which specially concerns us is
the attitude of the North, that is to say, of the United States
Government, towards the Declaration of Paris.

The Cambridge Modern History states ^ that on the 20th April
Mr Seward, the Secretary of State, instructed the American
Minister in Europe to offer the adhesion of the United States
to the Declaration, and that Great Britain and France agreed
to accept it with the reservation that it should not affect the

1 16 Geo, III., c. 6. « Document No. 24 (3),

» Vol. xii. p. 16.

156 The Declaration of Paris

existing war. It is further stated that the United States issued
no letters of marque, and the Confederate States very few.

With deference, these facts need revision, for they do not
tally with those recorded in the White Paper issued by the
British Government. The statement that the United States
took the i^^itiative in offering its adhesion to the Declaration
is not borne out. The heading to the series of published de-
spatches is " Correspondence relative to the Overtures addressed
to the Contending Parties in the United States, with a view to
their adhesion to the Principles of Maritime Law as laid down
by the Congress of Paris in 1856 " ; ^ and this will be found to
be the accurate description of the negotiations. In considering
these despatches, allowance must be made for the time occupied
by the transit of the mails.

The first despatch, from Lord John Russell to Lord Cowley,
British Ambassador at Paris, is dated the 6th May 1861 ; and it
is evident from its terms that no proposal had at that time been
received from the Federal Government. Its tenor was that no
despatches had come from Lord Lyons, Minister at Washington,
by the mail just arrived ; but that the accounts received from
the Consuls were sufficient to show that a civil war had broken
out. The British Government, looking at all the circumstances
of the case, could not hesitate to admit that the Confederacy
was entitled to be considered as a belligerent, and the attention
of the French Government was to be called to the bearing which
this unfortunate contest threatened to have on the rights and
interests of the neutral nations. The circumstances referred to
were President Lincoln's declaration of blockade of the Southern
ports, and President Davis's declaration of his intention to issue
letters of marque for cruisers to be employed against the com-
merce of the North. The maritime Powers, more especially
France and England, should therefore consider whether they
would not invite the contending parties to act upon the 2nd
and 3rd principles of the Declaration of Paris, to which the
United States had not acceded. In practice, however, they
had, in their Conventions with other Powers, adopted the 2nd
principle, although admitting that without some such Convention
the rule was not one of universal application. By these prin-
ciples enemy cargoes were to be free on board neutral ships,
and neutral cargoes free on enemy ships.

It seems to Her Majesty's Government to be deserving
of consideration whether a joint endeavour should not now
be made to obtain from each of the belligerents a formal

* A selection from this correspondence is set out as Document No. 24.

The Declaration during the American Civil War 157

recognition of both principles as laid down in the Declara-
tion of Paris, so that such principles shall be admitted by
both, as they have been admitted by the Powers who made
or acceded to the Declaration of Paris, henceforth to form
part of the general law of nations.

The French Government replied that as these two principles
had always been advocated by the United States, and that as
France and the United States were agreed on these maritime
questions, it would be difficult for either party in America to
refuse assent to the principles now invoked.

In a despatch of the 18th May to Lord Lyons, reference is
made to a recent letter from Mr Seward intimating that fof eign
advice was not likely to be accepted — would, in fact, be resented ;
and also to the fact that negotiations in regard to the adherence
to the Declaration of the United States had been broken off in
1857, and had not been renewed. It was, however, presumed
that, in view of its previous attitude towards the principle, the
United States would agree to adopt " free ships free goods."
With regard to the abolition of privateering, which was the cause
of the United States withholding its adherence to the Declara-
tion, it was necessary to consider what is required by the general
law of nations. The commander and crew of a ship bearing a
letter of marque must carry on hostilities according to the
established laws of war. The British Government must, there-
fore, hold any Government issuing such letters responsible for,
and liable to make good, any losses sustained by British subjects
in consequence of wrongful proceedings of vessels sailing with
them. In this way thefTbject of the Declaration of Paris might,
to a certain extent, be attained without the adoption of any
new principle. These points were to be urged upon Mr Seward.

The question was again referred to in another despatch of
the same date. The British Government would gladly see the
practice, which is calculated to lead to great irregularities, and
to increase the calamities of war, renounced by both the con-
tending parties in America, as it had been renounced by almost
every other nation in the world ; but

you will clearly understand that Her Majesty's Government
cannot accept the renunciation of privateering on the part of
the Government of the United States if coupled with the con-
dition that they should enforce its renunciation on the Con-
federate States, either by denying their right to issue letters
of marque, or by interfering with the belligerent operations of
vessels holding from them such letters of marque, so long
as they carry on hostilities according to the recognised prin-
ciples and under the admitted liabilities of the law of nations.

158 The Declaration of Paris

In a further despatch of the 21st May, Lord John Russell
refers to a conversation he had had on the 18th with Mr
Adams, United States Minister, who said he had powers to
negotiate as to the adherence of his Government to the
Declaration ; but that as instructions had been sent to the
French and English Ministers in Washington, he would leave
the matter in the hands of the Secretary of State.

From this it appears that although instructions had been sent
to Europe to offer adherence, the offer was not, in fact, made ;
and that the initiative was taken by England and France, who,
as the most powerful maritime States, took the lead, presumably
with the concurrence of the other Powers.

Cross-currents in diplomatic relations seem to have then set
in, for on the 12th June Lord John Russell wrote to the Paris
Embassy that he had been informed that the United States
had proposed to France to accept the first principle of the
Declaration, relating to the abolition of privateering, coupled
with a provision protecting private property at sea from capture,
but had stipulated that the Southern privateers should be con-
sidered as pirates. England had objected to both suggestions,
and France also. With regard to the first, its effect would be
greatly to reduce the power in time of war of all States having
a military as well as a commercial marine ; as to the second,
its evident object was to lead the two Powers to take a decided
part against the Southern Confederacy, and they had no in-
tention of abandoning their neutral character.

This despatch gives us the keynote to the whole corre-
spondence, and shows clearly the reasons for its failure to
achieve anything — the intense irritation of the United States at
the recognition of the Confederacy — the " Rebs" — as belligerents.
Thenceforward in every step taken, and in every despatch written
from Washington, may be traced the unalterable determination
to destroy if possible the consequence of that recognition. As
belligerents the South would have the right, so vehemently
contended for in the " Second Marcy Note," ^ to commission
privateers. If they were not belligerents the privateers would
be pirates, and, without any Declaration of Paris, the
European Powers, under their own municipal laws, as well
as under international law, would be bound to take their
own measures for dealing with them.

On the 4th June Lord Lyons wrote that he had proposed
to the United States that they should adhere to the two prin-
ciples. He added that probably Mr Adams would have already
offered the larger adherence, subject to the question of piracy,

^ Document No, 21.

The Declaration during the American Civil War 159

but suggested that it came too late. Had it been offered immedi-
ately on the appearance of the Southern notice to issue letters
of marque, action might have been taken to induce the South
to abandon the idea ; but the privateers were now in full
activity, and with considerable success. He doubted whether
Congress would now ratify the abolition of privateering, and
probably would not abide by the proposal made to France,
when it found that it had nothing to gain by it.

On the 21st June Lord John Russell informed Lord Lyons
that the United States Minister at Paris had proposed to France
the adoption of the Declaration, basing himself on Mr Marcy's
answer to the request of the Powers in 1856. France agreed with
us that the proposal should be rejected. Lord John asked Mr
Adams whether he had similar instructions with regard to Great
Britain. He had answered. No. And on the 17th Lord Lyons
reported that Mr Seward declined to receive communications
founded on the recognition of the South as belligerents ; and
objected also to France and England acting in concert. He had
pointed out that the United States had always admitted the
2nd and 3rd principles of the Declaration, and accepted re-
sponsibility for acts of privateers to whom it had issued letters
of marque. Mr Seward considered that these principles were as
applicable to operations against rebels as to regular war.

On the 17th June Lord Lyons reported a further step by
Mr Seward. He thought he had reason to complain that the
Governments of Europe had taken no notice of his offer, made
long ago, to adhere to the Declaration without reserve ; he
preferred Mr Marcy's proposal, but if that were not acceptable
he was ready to adhere as it stood, and Mr Adams was to be
instnicted to say that he was willing that negotiations should
be carried on either in London or Washington without delay.
It is not very clear to what offer " made long ago " Mr Seward
referred. On the 11th July, apparently in consequence of
these instructions, Mr Adams referred Lord John Russell to his
conversation of the 18th May, when he had intimated that he
was instructed to offer the adhesion of the State to the 2nd, 3rd,
and 4th principles, but to drop the 1st (abolition of privateer-
ing). He was now instructed to offer and present a project of
convention which included all four principles. Lord John
pointed out that this would not amount to adherence, but he
was content to waive the point if the convention was to be
entered into with all States ; and to avoid delay, he would be
satisfied if the one with France were ready.

Meanwhile, during July and August, the Confederate States
had been brought into line. They recognised the 2nd and 3rd

160 The Declaration of Paris

principles of the Declaration, and admitted responsibility for
privateers. The question of blockade was of no practical im-
portance in their case, as they had no fleet.

The discussion with the North proceeded on the lines of
adherence to Mr Marcy's propositions ; or, failing this, of ad-
herence pure and simple. But Lord John Russell annexed
to the Declaration an undertaking that it would have no bearing,
direct or indirect, on the internal differences in the States. This
obviously ran counter to the idea that by the adherence the
Powers would be compelled to treat the Southern privateers as
pirates. On the 23rd August Mr Adams sent a long despatch
arguing the point ; but Lord John would not withdraw his
stipulation, and instructions were sent to Mr Adams to break
off negotiations. In December Lord Lyons wrote that the
object of the accession would have been defeated by the stipula-
tion, and that refusal to consider the Southern privateers as
pirates after adherence would have been treated as a cause of
quarrel.

So ended the negotiations. There is, however, one point
of interest which does not seem to have been discussed :
whether, after the recognition of the Confederacy as belligerents,
the acceptance of the adherence of the North would have been
possible. Certainly the object which the North had in view
would not have been achieved, for the Southern States could
not have been both belligerents and pirates. This was probably
the meaning of Lord John Russell's undertaking ; but it might
have been more clearly expressed, and the point definitely and
directly answered. Oi:i the other hand, the recognition of the
Southern States as belligerents was not a recognition of their
independence, and therefore there could have been no question
of their adherence. Thus the negotiations proved infructuous.
But they were well conceived from the point of view of a Govern-
ment which had accepted the principles of the Paris Declaration,
being directed merely to the adherence of both belligerents to
two of those principles. The idea of the North that it could
adhere to the Declaration after war had been declared was ill-
conceived, and was no more than an endeavour to escape the
consequences of the recognition of the South as belligerents.
Further, the idea that the cumbrous method of independent
conventions could be effectively substituted for simple ad-
herence was still more so. But the important point with which
we are chiefly concerned is that at the close of the war the posi-
tion of the reunited United States was precisely the same as
it was before. In spite of an earnest belief in, and constant
adoption of, two of its principles, the result of the provision that

The Debate of 1862 161

adherence meant the definite acceptance of all four, was that
the United States had not put itself into the position of an ad-
herent, and therefore could not claim the benefits and privileges
of the Declaration.

The Debate of 1862.

There was one last debate before the question ceased to en-
gage the attention of Parliament ; an inevitable debate in view
of the American Civil War, and the amount of contraband trade
and blockade running which had sprung up. On the 11th March
1862, Mr Horsfall had been given to understand that nothing was
to be done to carry out the recommendations of the Committee ;
he therefore brought on the motion which had gone into abey-
ance the year before : " That the present state of international
maritime law as affecting the rights of belligerents and neutrals
is ill-defined and unsatisfactory and calls for the early attention
of His Majesty's Government." The motion was seconded by
Mr Cobden. It was ingeniously drafted, because it allowed men
of all shades of opinion to support it — those who thought the
Declaration of Paris had gone too far, and those who thought it
did not go far enough. There was a full-dress debate which
lasted two nights, with the result that the motion was, by leave,
withdrawn.

The extremists who followed Mr Horsfall advocated the
immunity of private property at sea, as the Committee had done
in their Report, " in the name of the commerce of the country,
in the name of civilisation, humanity, and justice." But the
motion, even if carried, would not have committed the House
to the adoption of any concrete proposition ; and it was doomed
to failure, for no Government which had recently and definitely
adopted a certain code of principles, which had still more
recently pressed them on the belligerents in a war, could be
expected to admit that the present state of the law was " ill-
defined " ; and the only " attention " which Her Majesty's
Government could give to it would be the calling of another
Conference — at the moment obviously out of the question. The
only possible answer then to attacks on the Declaration by
those who thought it went too far, was given by Lord John
Russell, who himself shared that opinion — " We must abide
by it." To have abandoned it at the first outbreak of war,

162 The Declaration of Paris

within five years of its signature, would clearly have been a
signal breach of faith.^

It is easy to criticise many years after the event ; but there
appears to have been an obvious line of attack for those who
believed that Pitt had not resisted in the teeth of Europe these
" new-fangled doctrines " for nothing, who were convinced that
the fortunes of the nation had been put in jeopardy by the
Clarendon capitulation, and the prestige of its name tarnished.
The case surely was not very difficult to deal with logically.
Certain questions of maritime law had been, as it was thought,
in the language of Count Walewski, elucidated, principles had
been laid down, intentions had been expressed, enfin, certain
declarations had been made, always and uniquely with the
object of assuring, for the future, the repose of the world.
That repose had been disturbed within a very short time ; war
had suddenly broken out in a quarter least expected. No one
could be said to be satisfied with the practical results of the
new principles. Neither belligerent would accept the first ;
the fourth had been deliberately set at naught, with the acqui-
escence of the European Powers, by Lincoln's blockade with
quite ineffective forces ; merchants were far from pleased with
what they considered the high-handed measures taken by one of
the belligerents, and the Foreign Office was besieged with com-
plaints. The very thing which English Ministers of the time
so feared, the risk of offending the neutral United States, had
been deliberately run — the United States being at war, and
England being the neutral. Even in March 1862, these things
were already manifest ; it was not likely that the tension all
round would diminish as the war developed. Was it not possible
to wait for the end, and then, in all seriousness, without any
expressed desire to impose one theory or another upon the world,
to move the Government to call a Congress to inquire whether
the principles, and the intentions, and the declarations, had stood
the rough test of war and fulfilled the expectations which

^ Mr C. W. P. Bentinck suggested the abandonment of the Declaration,
describing it as a " solemn farce," impossible to be carried out. Lord
John Russell, who had been a member of the Aberdeen Ministry in 1854,
expressed the deliberate opinion that in point of principle the Declara-
tion ought to be altered, and that the consequences were so serious as to
show that it was very imprudent. While agreeing that we could hardly
do otherwise than carry on the war on the same principle as France, he,
like Lord Derby, would like to have heard some statement of the grounds
for entering into the convention at the end of the war, when we were not
under the necessity of making any concession. The state of the question
was to some very alarming ; but he did not see that a breach of faith
would at all mend our position, and he was afraid that we must be bound
by it.

The Debate of 1862 163

enthusiasts had formed of them ? Such a notion made at the
proper time could not have been refused. As it was, the debate
was nothing more than a confused babel of sound, signifying
and achieving nothing. It is impossible to give a consecutive
analysis of it, for speaker followed speaker, not answering him,
but only throwing fresh words into the hotch-potch of talk.
Principles were asserted without argument ; arguments advanced
supporting no recognised principle ; and the result, except for
one memorable speech, nothing. That speech was John
Bright's. Many men spoke with varying degree of ability, and
all the old arguments were repeated, some defending the Decla-
ration, some attacking it. Sir Roundell Palmer, the Solicitor-
General, stood judicially between the two parties, and expressed
the opinion that even with the Declaration " round our necks "
he placed as much faith as before " in the patriotism, the
resources, and the elasticity of the country."

Sir George Cornewall Lewis started an unnecessary and ex-
tremely debateable point, which startled and annoyed men of
both sides : that the Declaration being a treaty, would cease
to be binding in the event of our going to war with one of the
signatories. This point will be considered in the Second Part
of this volume.

John Bright's speech was conspicuous for its statesmanship.
It was a fair-minded expression of his extreme view. There
were no strained appeals, only an occasional reference, to
" humanity " and " civilisation." As a " friend of peace," glory-
ing indeed at the jibe which had been thrown at him a thousand
times, his constant demand was that, in the name of humanity,
all wars should cease. But the impression that his speech leaves
upon the mind is that, given the existence of war, he recognised
that " humanity " had no special claim to be thrown into the
balance against its being successfully waged. He frankly
admitted that the principles he was advocating were in the
teeth of all the ancient theories of war. But he did not denounce
those theories as " relics of barbarism," nor the new theories
as " more suited to the times in which we live." He wished his
creed to be judged on its merits ; and his creed was, not " com-
merce at any price " and everything sacrificed to its interests,
but that the beneficent influence of commercial intercourse
would soften the asperities of men's political intercourse ; and,
in spite of the Crimea, in spite of the American Civil War, he
believed that war would become more difficult notwithstanding
the enormous armaments, and continuous war more remote.
" Our commerce," he declared, "is so extensive, and its force
so mighty — I will say so omnipotent — that it is utterly im-

164 The Declaration of Paris

possible that the ancient theories and the ancient policy of war
can any longer be maintained." He looked forward to the time
when " the commercial interests of mankind will assert the
superiority to which they have a right over those tendencies to
war which in time past, and even now sometimes, act too strongly
on the minds of statesmen and rulers. ... I think we are look-
ing from the darkness into the dawn."

In natural sequence to this line of thought he believed that
to rob war of one of its most potent weapons — the right to de-
stroy private property at sea — would tend necessarily to reduce
its field of operations, and so its length. In his eyes indeed
the " victories of peace had begun " by the acceptance of the
Declaration of Paris. In his summary of it he stated its
principles with brutal frankness ; and he put the consequences
of it, almost exultingly, before the House in a way in which
its advocates never had the courage to do. The Declaration
" declared that there should henceforth be no war made upon
the trade of a belligerent with the exception of an actual
blockade . . . that belligerents might trade in peace, not only
with each other, but with all neutrals, if their trade was only
carried on in the ships of neutrals." There was no question of
" neutral rights " here, but only of belligerent concession to
belligerent ; and the position he thought might be put still
more plainly thus : " if an enemy will keep his own ships at
home we undertake, and all other nations undertake, to do no
harm to his trade at sea." But, he continued, the Declaration,
thus interpreted, was but a stepping-stone. You must be
logical ; and the logical consequence of what had been done
was that more remained to be done, as Mr Thomas Baring had
insisted : " You have freed the cargoes ; you have freed the
manufactures of a country in their transit across the sea . . .
why not include the ships ? If the trade of belligerents be
permitted — and the object of the Declaration of Paris was to
permit it, upon condition that it should be carried in neutral
ships — why should it not go in the ships and come in the ships
of belligerents ? "

To him, then, it was clear that the Government had paved
the way for the acceptance of that great principle, the immunity
of private property from capture at sea. But further, the
adoption of this principle was just ; for, if he had rightly inter-
preted the effect of the Declaration, it would follow from this
privilege given to neutral ships that the great bulk of our own
ships during war would be kept in harbour. That was what
the Liverpool Chamber of Commerce thought ; and if they
were right, the result would come to this, that we had agreed

The Debate of 1862 165

to make war less burdensome to ourselves, and less burdensome
to any enemy ; but we had done it in such a manner as to inflict
special hardship, and to cause something like ruin and very
grievous injury to a very large and important class of the
population of the country — ^the shipowners. You have freed the
cargoes, it follows that you must free the ships.

Having made his point, he turned and rent Lord Palmerston;
for the Prime Minister, in the first flush of the peace, in 1856,
had gone down to Liverpool and made a most indiscreet speech.
He had, in fact, propounded what to the " rights of war " party
was most damnable doctrine, but to the pacifists had been a
word of good cheer : " We had with France made changes
and relaxations in the doctrine of war which, without in any
degree impairing the power of the belligerents against their
opponents, maintained the course of hostilities, yet tended to
mitigate the pressure which hostilities inevitably produce upon
the commercial transactions of countries that are at war. I
cannot help hoping that these relaxations of former doctrines
which were established at the beginning of the war, practised
during its continuance, and ratified by formal engagements,
may perhaps be still further extended ; and in the course of
time the principles of war which are applied to hostilities by
land may be extended without exception to hostilities by
sea, and that private property shall no longer be exposed to
aggression on either side."

This was the full extent of the pacifists' hopeful creed, and
was certainly not accepted by all the Government, notably
Sir George Cornewall Lewis, who declared that there was no
difference between the existing mode of conducting warfare on
land and at sea. But some sceptical newspaper, probably the
Times, had declared this to be a " crotchet," and that Lord
Palmerston's real opinion was that the adoption of it would
be tantamount to committing " political suicide." Bright pro-
duced the quotation with telling effect. The Prime Minister
had appealed in glowing language to the shipowners and mer-
chants of Liverpool to say that, while the Government were
engaged in the great transactions of war, they had not neglected
the great interests of the commerce of England. He would
not say he had been " starring the provinces," and had not been
very particular as to the mode by which he excited the en-
thusiasm of his audience. He was ready to believe that at the
moment he was in earnest as to the possibility of carrying the
principle of the Declaration further. Oblique sarcasm, which
involved some particle of untruth, was foreign to John Bright ;
but he did not refrain, when he found it necessary to show up

166 The Declaration of Paris

things in their true Hght, from using the very simplest words
of scorn in the vocabulary. If the newspaper was right in its
estimate of his true opinion, unless he had been talking
** twaddle," the Prime Minister must explain how it was he
differed so greatly from his colleague the Secretary of War, and
from himself.

Palmerston could not but answer the challenge ; for he must
have known that " all kinds of twaddle " was the only way in
which to describe his speech at Liverpool. He admitted having
used the words ascribed to him ; he must have known that
Bright was right in saying, " I have a distinct recollection that
these observations were accepted with great satisfaction in the
seats of industry in the north of England, and I believe that
these observations went far with many men to convince them
of the justice of the course which our representative had taken
at Paris and of the wisdom of proceeding still further." But
" further reflection and deeper thinking " had made him alter
his opinion with regard to one of the two doctrines he had
referred to. He hoped that the Honourable Member would be
kind enough to give weight to his second thoughts, " and also
come round to those second thoughts, which are proverbially
the best." He then proceeded to give the House the benefit
of his second thoughts.

Bright's thoughts concerning this extraordinary statement
have not been revealed. Probably they took some such shape
as this : that the test of statesmanship when action is essential
is the value of its first thoughts, because action taken cannot be
undone.

The passage quoted from the Liverpool speech related to
two matters : first, the exemption of private property at sea
from capture ; secondly, the assimilation of the principles of
war at sea to the practice of war on land. It was in regard
to the first that " further reflection and deeper thinking " had
compelled Lord Palmerston to alter his opinion. This was his
new and, therefore, deliberate opinion : "If you give up that
power which you possess, and which all maritime States possess
and have exercised, of taking the ships, the property, and the
crews of the nation with whom you may happen to be at war,
crippling the right arm of our strength, you would be inflicting
a blow upon our naval power, and you would be guilty of an
act of political suicide."

Lord Palmerston showed considerable moral courage in
accepting the very words which the newspaper had attributed
to him, " pohtical suicide." There can be no doubt that that
was his real opinion : it tallied with what he had written to

The Debate of 1862 167

Lord Clarendon when he sanctioned the surrender at Paris in
1856 ; it was what he had said in effect in the House in 1857,
that the suggestion of the United States as to the immunity
of private property at sea " required long and matured con-
sideration," and what he had hinted at in 1861. How he came
to say what he did at Liverpool must ever remain a mystery ;
but this is clear, that attributing to him all good faith, as Bright
was willing to do, he had already changed his mind the follow-
ing year, and it is to be regretted that the public were kept in
ignorance for so long a time.^

Yet he was not quite fair to himself. In 1857 he had also
said that it was difficult to apply the same rules of warfare to
the sea as prevailed on land ; but now he was willing to admit
the possibility, had suggested at Liverpool that they could be
applied ; indeed he thought that, so far as it was in the power
of the Government by arrangement with other Powers, they had
accomplished it by the abolition of privateering. Therefore to
that doctrine he still adhered ; but he rambled in his argument.
He denied that the essential difference between sea and land
warfare was that in the latter private property was respected,
but that in the former it was seized. The only difference was
really in favour of sea warfare, because at sea it was taken
with more order and regularity, and was not declared to be
prize until it had been adjudicated by a competent tribunal
as a legal and proper capture. It was, however, a fact that at
sea private property was taken by a different set of people,
the privateers ; and now that they had been abolished, the
desired assimilation had been effected ; the balance remained
in favour of the sea. But this part of the speech was confused
and anecdotal, and there are other signs in it that Bright's
reference to his old backsliding at Liverpool had upset his
equanimity ; he was betrayed into other blunders.

He denied that the principle of immunity of private pro-
perty at sea follows as a logical consequence from the accept-
ance of " free ships free goods," because " the Declaration of
Paris related entirely to the relations between belligerents
and neutrals " ; and the immunity of private property doctrine
" relates to the relation of belligerents to each other."

The point will be more fully considered in the Second Part
of this volume, but it must be indicated at once. It is obvious
that if a number of Powers agree by a single Declaration (as
distinct from a series of separate agreements) to accept and

^ Mr Sheldon Amos, in Political and Legal Remedies for War, gives the
occasion of Lord Pabnerston's recantation as the 3rd February 1860. I
have been unable to trace any allusion to the subject on this date.

168 The Declaration of Paris

abide by the principle " free ships free goods," it must apply-
as between themselves when any of them are belligerents —
and then as between belligerent and belligerent : and the re-
mainder are neutral — and then as between belligerent and
neutral.

The question whether the immunity of private property is
a logical consequence from the maxim depends on the accuracy
of John Bright's argument. I find it difficult to detect the
flaw.

Again, Lord Palmerston was wrong in saying that the
identity of sea and land warfare was achieved by abolishing
privateers, as his own illustrations of the excesses committed
during land warfare showed ; and still more wrong in describing
the privateers as not being a regularly organised force acting
under the authority of a responsible Government. The com-
plaints against the system were not that they acted without
authority, but that they abused their authority, acting in
excess of it.

Finally, he was wrong in his assumption that " free ships
free goods " was justified by the theory that a merchant ship
at sea is part of the national territory, and that, therefore, the
boarding of a neutral ship at sea was equivalent to an invasion
of neutral territory. The " floating island " theory has long
been exploded.^ He declared that we had maintained that
theory in the affair of the Trent, even at risk of war ; but Earl
Russell's despatch to Lord Lyons, of the 23rd January 1862,2
did not give currency to a very inaccurate theory, but rested
the British case entirely on the respect due to the national
flag, another and perfectly distinct doctrine. Whether that
doctrine is a sufficient justification for " free ships free goods "
is another matter. It is the point round which the whole con-
troversy between England and the neutral nations turns.

Lord Palmerston's argument, therefore, was in reality a
justification of the protest against the second principle of the
Declaration of Paris. There can be little doubt that, but for
his unfortunate speech at Liverpool, his real views, had he
re-read his own despatch to Lord Clarendon of the 13th April
1856, would have been more coherently stated.

Then Disraeli rose and administered the coup de grace. He
was too imbued with the history of England at its greatest to
speak on such a subject without weighty reflection. But it was
already past midnight ; and he must have felt that no amount
of argument would achieve the recall of the Declaration of Paris.

* See judgment of Lindley, L.J., in the Franconia case, L.R., 2 Ex. D.,
at p. 93. 2 State Papers, vol. Iv. p. 650.

The Debate of 1862 169

He therefore compressed his opinion into one short sentence :
" We have given up the cardinal principle of our maritime
code." The reason for the change in the views of the Govern-
ment at the time of the Crimea from those acted on during the
wars with France was patent : they feared that the assertion
of our old principle might involve us in embarrassment with the
United States. Had the night been younger we might have had
from the past-master of sarcasm a comparison of the spirit of
that day with that of old times when Chatham and, after
Chatham, Chatham's son had faced the anger of the neutrals,
and braved the threats of Armed Neutralities.

As for Lord Palmerston and his Liverpool speech, it was
clear, Disraeli remarked, that when peace was proclaimed he
had gone down to the country to receive the congratulations
of his friends and stimulate the spirit of the Party, which was
none too pleased with the Treaty of Paris. Disraeli protested
against the maritime law of England being made the sport of
Party, and against introducing the plea of " second thoughts "
into so great a subject. The Prime Minister had now proclaimed
to be " political suicide " the adoption of the very doctrine
which he had supported in that speech. His influence would
be shattered ; and when, if ever, he again warned the country
of the danger of any step contemplated by any Government,
his words would fall on doubting ears, as those from the
mouth of the man who had so often called " wolf " to the
village when there was no wolf, that when the warning was
needed it was ignored.

Lord Palmerston's Liverpool speech was once more referred
to on 6th February 1908 in a debate on Mr F. E. Smith's amend-
ment to the Address, that " we humbly express our regret that
Your Majesty's plenipotentiaries at The Hague Conference were
not authorised to forward the reduction of international
armaments by assenting to the principle of the immunity of
enemy merchant vessels, other than carriers of contraband,
in time of war."

It is unnecessary to refer to the arguments which were used,
as the war has raised the subject from the region of opinion
into that of hard practical fact. The debate is interesting,
however, as showing the vitality of the immunity of private
property at sea doctrine. Sir Edward Grey drew attention to
Lord Palmerston's recantation in 1862, and expressed the
opinion that humanity had nothing to do with seizing enemy
property on neutral ships.

PART II

COMMENTART

THE MEANING AND EFFECT OF THE
DECLARATION OF PARIS,

To the story of the Declaration of Paris, as it has been told from
forgotten despatches and the columns of Hansard, must now be
added a study of its meaning and effect. Its provisions have
by the greater number of writers been taken at their face value,
but they are so very crudely stated, the discussions in the
Congress of Paris were so loose and unscientific, that their
value is very small.

There is this much to be said for Catherine of Russia : having
got a certain number of neutrals, and two of the belligerents, to
accept her principles, she set her lawyers to work on a maritime
code.^ The best principles in the world need accurate statement.
One would have imagined that the ideas which the plenipo-
tentiaries intended should govern the relations of belligerents
and neutrals in future wars would have been handed over to the
official draftsmen to reduce into a concrete and workman-
like form. Even as principles intended as a guide to future
legislation they leave much to be desired in the statement.
As operative rules without such legislation, there is no good word
to be found for them. Nor, taking them as a whole, can they
lay any claim to be a code, for the point in greatest dispute
is left untouched. There is no definition of the meaning of
contraband of war.

On the very threshold of our study as to what are the meaning
and effect of the Declaration we are confronted with a question
which no one seems to have been at pains to ask, then or since :
Do the four formulas represent political principles, which the
adherent Governments engaged to observe when they went to
war ? or were they intended to be legal maxims for the guidance
of the Prize Courts ?

In this Second Part I propose to examine some of the ques-
tions which arise in connection with the interpretation of the
Declaration.

1 A translation of this code is printed in vol i. of this series, The Docu-
mentary History of the Armed Neutralities.

173

174 The Declaration of Paris

The Nature of a Declaration : The Treaty-making
Prerogative.

First, then, what is a Declaration ? Treaties we know ; Con-
ventions we think we know ; but Declarations ! Is it a term
of deeper or shallower meaning ? Or is it one of that class of
verbal changes which always mean the same thing ?

Mr Oppenheim has thrown some light on the question. He
says that the term " declaration " is used in three senses ; ^ but
with one of them only we need concern ourselves — when it is
used as " the title of a body of stipulations of a law-making
treaty according to which the Parties engage themselves to
pursue in future a certain line of conduct." ^ He considers that
there is no essential difference between declarations and treaties,
and that their binding force upon the contracting parties is the
same by whatever name they are called.

Continental jurists have busied themselves with the question,
and have been at great pains to prove that the Declaration of
Paris is a binding document. Some would seem to have endowed
it with a very special force ; these Mr Oppenheim very effectively
disposes of : ^ —

The attempt to distinguish fundamentally between a
Declaration and a Convention by maintaining that whereas
a " Convention creates rules of particular International Law
between the contracting States only, a Declaration contains
the recognition, on the part of the best qualified and most
interested Powers, of rules of universal International Law "
does not stand the test of scientific criticism.

This imaginary principle expresses no more than fear that
England, having fallen into the pit which they digged for her,
may possibly have some chance of getting out of it. But I
would go much further than Mr Oppenheim ; the suggestion is
merely fantastic, and quite unworthy that the test of scientific
criticism should be applied to it.

But while I agree that a declaration is not a higher sort of
international document than a treaty, I cannot agree that there
is no essential difference between them. We must assume from
the fact of its use that the term does indicate a special form

* International Law, vol. i. pp. 537, 552. ^ j^,^ p. 551.

The Nature of a Declaration 175

of agreement between States. This difference is indicated in
Mr Oppenheim's definition that it is " a body of stipulations "
(or, of course, " one stipulation ") " according to which the
parties engage themselves to pursue in future a certain line of
conduct." But this is incomplete as it stands, and I think
the distinction is more accurately stated thus : A treaty or a
convention is an agreement as to present or future conduct
requiring no further action on the part of the High Contracting
Parties to complete its effectiveness. A declaration is used
when it is necessary to indicate that the agreement arrived at
requires some further action to be taken to make it operative,
either immediately or when occasion arises. Yet even this is not
sufficiently explicit to convey a meaning clear of all ambiguity ;
for some treaties require further action to make them operative,
the most familiar instance being those dealing with extradition,
which need an Order in Council to apply the Extradition Act,
and so give them full effectiveness.

An examination of the question seems to point to this con-
clusion : that a declaration is used when the agreement is as
to the acceptance of a principle which requires further action
on the part of the High Contracting Parties to put it in force.
The Declaration agreed to at the Congress of Vienna as to the
abolition of the slave trade required further action on the part of
the signatory Powers to put it in force in their own dominions,
and may be taken as the classical example. The question is
whether this precedent should not have been followed in the
case of the Declaration of Paris.

The Declaration of Paris was not submitted to Parliament.
Ministers were loud in their protest that it was unnecessary,
being entirely within the prerogative. This has led some
foreign critics off the track of their knowledge of our institutions,
supposing this virtue of exemption from parliamentary control
to be peculiar to a " declaration." But this point is clear :
that as a constitutional document a declaration does not differ
from a treaty, and — a declaration by Parliament as such being
as unimaginable as a treaty entered into by Parliament — falls
within and is subject to all the rules which govern the treaty-
making prerogative.

Now, fn the common statement of the first rule we come
across a very grievous misuse of words. It is said that the
treaty-making prerogative is " absolute." What is meant is
that it is " unfettered," subject only to the condition imposed
in a constitutional monarchy, that the King acts on the advice
of his responsible Ministers. There are no fetters, either as
to range or extent of this prerogative ; but so far from being

176 The Declaration of Paris

" absolute " it is subject to one unshakeable rule, which, if
infringed, will render the Bang's sign-manual of no effect ; the
Courts, even of lowest degree, must disregard it. The rule is
that no treaty can alter the law, for the law is above all treaties ;
and the Courts above the King and his Ministers. Alteration
of the law can only be accomplished by Parliament ; that is, by
the King with the advice and consent of the Lords and Commons
in Parliament assembled.

Exception must be taken to Mr Oppenheim's term " law-
making treaty " ; for while it is perfectly true that treaties are
part of the law of the land, and, as was laid do\vn in R. v. Wilson,^
will be enforced by the Courts, this term is too wide in its scope ;
and when applied to declarations assumes the very question
which Lord Clarendon assumed, but which requires the closest
study, whether the Declaration of Paris did effect what it pro-
fessed to effect, a change in the maritime law enforced by English
Prize Courts.

This point, though elementary, is of such importance to the
subject in hand that I summarise what I have said in my book
on Extradition, as it contains the clue to the real position of
the Declaration of Paris.

It is fundamental that the making of treaties is part of the
prerogative of the King. But there are two other principles
equally fundamental : that the King cannot, in the exercise of
any part of the prerogative, interfere with the rights of the
subject ; nor can he interfere with or alter matters which have
been dealt with by ParUament.

The King requires no sanction to enable him to enter into
a bilateral extradition treaty with a foreign Sovereign. But
seeing that the surrender of a criminal, fugitive in England
from a foreign State, involves his arrest, a deprivation of the
fugitive's right to liberty in England, against whose laws he has
committed no offence, the authority of Parliament is necessary
in order to enable the King to carry out his treaty obligation.
But in the case of a fugitive surrendered to England from a
foreign country, the Extradition Act is silent ; the treaty
prerogative here requires no reinforcement by parliamentary
authority. The Act does not profess to decide in what cases
the King may agree to receive fugitives surrendered under the
treaty who have committed offences in England. They are
brought here in virtue of the treaty, they are tried here in
virtue of the law.

This very plain principle must be applied to the Declaration.

1 L.R. 3, Q.B.D. 42.

The Nature of a Declaration 177

The complaint that Parliament was not consulted contained
something more than a protest that it was an affront not to
consult it on so important a matter. The constitutional question
involved in the treaty-making prerogative was in issue.

This prerogative has suffered grievously at the hands of
Ministers. In 1890 the question was deliberately threshed out
in Parhament in the debate on the Act authorising the cession
of Heligoland to Germany, and all the light and learning then
available was brought to bear on its solution : with no better
conclusion than that in regard to cessions of territory the
precedents showed it to be in a nebulous condition. And yet,
seeing that a cession must affect the people's rights in the
territory ceded, it was as simple an example of the funda-
mental principle as could well be imagined. Mr Gladstone did
not carry matters any further by declaring that he would " wash
his hands " of the whole matter, and by taking no further part
in the debate. He approved the policy of the Conservative
Government, which he might vigorously have attacked, but
challenged their action in bringing the matter before the House.
Though he enjoyed the reputation of being a past-master of
constitutional lore, he enunciated the false doctrine that the
treaty-making prerogative is absolutely and in all cases beyond
the cognisance of Parliament.

Lord Clarendon, when his action was challenged in the House
of Lords very soon after the Congress of Paris, took the same
line ; and Lord Campbell, Lord Chief Justice of England, wrote
a letter, which was read to the Lords, declaring that the Govern-
ment action was right. There was at the time a vigorous out-
cry against the Government in certain quarters ; and even now
the criticism is still heard among those who disbelieve in the
merits of the Declaration, that it is inoperative because it
was not submitted to Parliament. For the moment I am not
prepared to say that the Government were not within their
rights. No opinion can be given without a more minute ex-
amination of the questions involved in the inquiry whether
the constitutional forms required by the law to accomplish
the terms of the Declaration were complied with ; or, putting
it another way, whether the Declaration is in itself an effective
document ?

The point involved may be illustrated, and more completely
understood, by briefly considering the annexe to the protocols
of the Congress of Vienna dealing with the abolition of the
slave trade, which was also in the form of a Declaration.

The plenipotentiaries, duly authorised thereto, declared in
the face of Europe the universal abolition of the trade to be

178 The Declaration of Paris

" une mesure particulierement digne de leur attention, conforme
a I'esprit du siecle, et aux principes gen^reux de leurs Augustes
Souverains," and proclaimed " le voeu de mettre un terme a
un fleau qui a si longtemps desole I'Afrique, degrade I'Europe,
et afflige I'humanite." They declared that they were " animes
du desir sincere de concourir a 1 'execution la plus prompte et
la plus efficace de cette mesure, par tous les moyens a leur dis-
position, et d'agir dans I'emploi de ces moyens avec toute la
persistance qu'ils doivent a une aussi grande et belle Cause." ^
But they recognised that no more could be done than that each
signatory Power would engage to take, so soon as it might be
convenient, all steps necessary to abolish the trade within
its dominions — the further steps necessary to make that
Declaration effective.

So far as England is concerned, even though the King should,
in virtue of his prerogative, conclude treaties, or make declara-
tions, with intent to abolish the slave or any other trade, yet
they would remain abstractions unless and until Parliament
passed the necessary legislation to give effect to them, for the
simple reason that rights of individuals in the trade would be
affected.

The abolition of the slave trade was a far more complicated
business than the alteration of the maritime law, the rights in-
volved more clearly apparent, the owners of them more vocable.
But that does not excuse Ministers for the reticence they ex-
hibited in not explaining the grounds of their opinion. The
ipse dixit of the Lord Chief Justice was insufficient in so grave
a matter. The customary reference to the Law Officers' opinions
was omitted, though presumably they had been consulted. The
question was a diflficult one, and hinges on the negative spirit
which pervades the Declaration of Paris, expressive of the great
negative, at last achieved, that England would no longer act in
war as she had been used to do ; and while the necessity for
Parliamentary action is obvious where the King's engagement
is positive — to act ; it may well be not quite so obvious where
the engagement is negative — not to act. Yet the same rule
holds, that the law cannot be altered by the King. If the law
in any circumstances requires action, then no engagement of
the Kjng can effectively agree to inaction. So in the case of a
principle which the Courts enforce, no engagement of the King
can compel them to refrain from enforcing it.

^ De Martens, Nouveau Becueil, ii. p. 432.

Principles of the Declaration Examined 179

The Constitutional Aspect of the Principles of the
Declaration Examined.

We must now examine the four principles of the Declaration
in order to see whether, in accordance with the rule just dis-
cussed, they ought to have been submitted to Parliament.

As to principle 1 — that " privateering is and remains
abolished." The grant of letters of marque to privateers de-
pends solely on the King's prerogative of granting commissions.
The principle means, therefore, that the plenipotentiaries duly
authorised undertook on behalf of the Queen and her successors
never again to issue these commissions. This matter then
rests entirely on the prerogative ; the law was not involved,
the rights of the individual were not affected, and therefore
parliamentary concurrence was unnecessary.

As to principle 4 — ^that " blockades, in order to be legally
binding, must be effective."

The form in which the principle is stated suggests that it
was intended as a direction to the Prize Court not to recognise
blockades unless they are " effective." The principle implies
that ineffective blockades had been resorted to in the past,
and that the practice was now to cease. But the declaration of
blockade is an act of war ; it is a " high act of sovereignty." ^
The principle, therefore, also implies a submission of this act
to a judicial test of effectiveness.

But in point of fact it did little more than state a rule
which everybody admitted — ^that what are known as " paper
blockades " will not be recognised. The actual words used
and what underlay them will be considered in the next chapter.
But whatever may have been the intention of the Congress,
no change in the law having been effected in fact, the consti-
tutional principle does not arise.

As to principle 3 — that " neutral goods, with the exception
of contraband of war, are not liable to capture under enemy's
flag."

This principle affected France more than England. " Enemy
ships enemy goods " did not form part of English general
maritime law, though she had agreed to it in some treaties.
The Courts, whether of Common Law or of Prize, would recognise
these treaties, which were expressly preserved by one of the
subsidiary conditions attached to the Declaration. The principle

1 Sir W. Scott in the HenricJc and Maria, 1 C. Rob , 146.

180 The Declaration of Paris

amounted to an undertaking that Parhament would never,
without the consent of all the adherent Powers, alter this law —
an undertaking contrary to the law and custom of Parliament.

In view of the further subsidiary condition that no treaties
should be entered into in future which were not based on the
four principles, there was a further undertaking that the Queen
and her successors would comply with this condition. This
undertaking would not require Parliamentary sanction.

As to principle 2 — that " the neutral flag covers enemy's
goods with the exception of contraband of war."

Lord Derby's criticism of this principle (in the debate of
1856) was that it was " dogmatic and dictatorial." Another
verbal criticism is that by the use of the word " covers " it
asserted what was not a fact with regard to English maritime
law. But " covers " meant " shall in future cover " so far as
England was concerned. Indeed, Lord Clarendon probably
meant it to imply " ought in the past to have covered " !

This is the only one of the four principles as to which a doubt
on the constitutional question arises ; and there are three inde-
pendent lines of argument by which the Government might have
justified the refusal to submit the second principle to the
approval of Parliament.

First : it is in the power of the Executive to modify or
abandon the exercise of a belligerent right, whether the right
be seizing enemy goods on neutral ships, or blockading enemy
ports.

Therefore this principle may be construed as an under-
taking by the plenipotentiaries on behalf of the Queen and
her successors to do at the commencement of every war what
had been done in 1854 — issue an Order in Council^ abandon-
ing the right. From this point of view, the acceptance of the
principle would be within the prerogative.

Or secondly : the King is a party to all proceedings in prize.
Prize accrues to the King in his office of Admiralty. No one has
a right to prize ; it is awarded by the Court to the captors as
Royal bounty, 2 in accordance with the terms of a Proclamation

1 Document No. 9 (8).

2 " The King in his office of Admiralty is . . . the fountain of all prize . . .
the King holds the office of Lord High Admiral in a capacity distingmshable
from his regal character." — (Sir William Scott in the Mercurius, 1 C.
Rob., 80.)

This was subsequently amplified in the Elsabe (4 C. Rob., 408) : —
" It is admitted on the part of the captors that their claim rests wholly
on the Order of Council, the Proclamation, and the Prize Act. It is not
(as it cannot be) denied that, independent of those instruments, the whole
subject-matter is in the hands of the Crown, as well in point of interest
as in point of authority. Prize is altogether a creature of the Crown. No

Principles of the Declaration Examined 181

issued at the commencement of each war. The adoption of
" free ships free goods " as a permanent principle may be con-
strued, therefore, to mean a perpetual modification voluntarily
made by the Crown of its rights of prize. It is a waiver of a
claim to prize in respect of a certain category of goods which
the Crown would otherwise have been entitled to make good.

Prize, whether taken by ships in regular commission or
under letters of marque, thus lying in grant from the King,
the adoption of a principle which limits the amount of prize
money, or the cases in which prizes may be taken and so prize
money acquired, cannot prejudice any right in the grantees,
but merely limits the grant. Therefore, from this point of view
also the acceptance of the principle was within the prerogative,
and no parliamentary sanction was necessary.

Or thirdly : assuming the constitutional principle to be,
stated broadly, that the prerogative cannot alter the law of
England, the argument would take this form — " Maritime law "
depends on the Law of Nations ; the Prize Courts enforce this
law, with which Parliament has nothing to do. The " maritime
law of England " is an inaccurate expression. If this is a sound
view — and there is authority for it, more especially in the
Zamora judgment ^ — ^then the Government would have been
justified in saying that the adoption of the 2nd principle lay
beyond the control of Parliament.

Thus, with regard to three of the principles the Government
were on the right side of constitutional law, and certainly had
two sound arguments to support them in regard to the other.
Yet the fact remained that an alteration was effected in the
law of prize administered by the English Courts, of Common
Law as well as of Prize. The question how far such an alteration
is withdrawn from the general rule that Parliament alone can
alter the law must be postponed for the present. It must be

man has, or can have, any interest but what he takes as the mere gift of
the Crown. Beyond the extent of that gift he has nothing. This is the
principle of law on the subject, and founded on the wisest reasons. The
right of making war and peace is excliisively in the Crown. The acquisi-
tions of war belong to the Crown ; and the disposal of these acquisitions
may be of the utmost importance for the purpose both of war and peace. . . .

" The Proclamation gives the whole property, but not till after adjudica-
tion ; until that time, no beneficial interest attaches. So the Prize Act
in hke terms gives the whole interest or property in opposition to that
proportional and partial interest given by former Acts, but not till ad-
judication. In adverting to these instnxments, it is impossible not to
remark the very guarded terms in which the benefit is conferred. The
Proclamation gives to privateers ' after final adjudication, and not before ' ;
not merely after adjudication, but superadding a negative pregnant, ' and
not before.' "

^ Lloyd's Prize Cases, iv. p. 62.

182 The Declaration of Paris

confessed, however, that the alternative, that such a change
should be left entirely to the discretion of the Ministers of the
day, is curious and dangerous. It certainly stretches the
doctrine that Parliament has no control over war except the
furnishing or withholding supplies to its extreme limit.

But putting technicalities on one side, there is the best of
all reasons why such an alteration should be submitted to
Parliament : it is a question in which the people of England
are deeply concerned. And there was a precedent. The
treaty with France of 1786 was brought before both Houses
by motion ; Pitt himself moved in the Commons.^ In the
Lords, Lord Lansdowne approved the procedure because " it
has been an ancient custom of advising the Crown in matters
of commerce." ^

As a matter of fact, that treaty contained an article recognis-
ing " free ships free goods " as between the two countries. He
expressed his concern at its introduction, and his hope that
this principle would never again be introduced into any treaty
without Parliament being consulted.^

It may be true that, in regard to maritime law, no such
ancient custom of advising the Crown exists ; but assuredly the
concern of the people in it is as great as in their commercial
relations with foreign countries. " Need not " is not always
a sufficient justification for " will not." Unfortunately in 1856
it fitted in too well with the desire for secrecy.

The most curious point remains. It is more than doubtful
whether aU the talk about constitutional doctrine represented
the actual opinion of the Government. The Declaration of
Paris, at least in regard to the principle " free ships free goods,"
stood constitutionally on precisely the same plane as the
Declaration to the neutrals in 1854, in which that principle had
been first adopted. Great pains then were taken to decide what
was the proper course to pursue in regard to so novel a docu-
ment. Lord John Russell said that, when the policy had been
decided on, there would probably be an Order in Council or
a Declaration, and that the Government were not quite sure
whether a Bill might not also be necessary. This was decided
in the negative ; but the Declaration was followed by an Order
in Council — 15th April 1854 — " in furtherance " of the Declara-
tion. What was true of one was true of the other, when the
need arose. The constitutional question had therefore been
decided, but in a manner very different from that stated by
Lord Clarendon. The view of the Law Officers apparently was

^ Hansard's Parliamentary History, vol. xxvi. pp. 346, 381.
2 Ih., p. 554. 3 jft.^ p. 577.

The Form in which the Principles are Stated 183

that such a Declaration need not be submitted to Parliament ;
but that it was not in itself an operative document, and, in order
to fulfil the Queen's obligations under it, an Order in Council
would be necessary to put it in force whenever England went
to war. The course adopted in 1854 was also followed in March
1860, when an Order in Council was issued " relative to the
observance of the Rules of maritime war under the Declaration
of Paris," in the event of war by France and Great Britain
against China. ^

The solution of the constitutional question naturally varies
in each country according to the provisions of its constitution.
The Declaration was promulgated in France, ^ and also, as we
have seen, in the Argentine Republic, Switzerland, and Prussia.

Ill

The Form in which the Principles are Stated.

If the constitutional question was dealt with clumsily, the
drafting of the principles was still worse. With regard to the
1st principle, the declaration that " privateering is and remains
abolished," though untrue as long as there were any dissenting
Powers, may pass as a convenient formula to indicate the
undertaking of the adherent Powers that they would never
issue commissions to privateers. Yet even then, it is by no
means clear that there is not a reservation in favour of resorting
to them in the event of a war with a non-adherent Power.

The 2nd — that " the neutral flag covers enemy's goods with
the exception of contraband of war " — is incomplete even as a
statement of principle. Just as it was necessary to declare
that " free ships " could not make contraband of war " free,"
so it was necessary to declare that they did not make any
goods " free " when they were on board a ship condemned for
running a blockade.

Further, in the case of an embargo, " free ships " have no
privileges at aU in respect of any goods on board, and neutral
owners of cargo may suffer great loss from the delay occasioned
by enforced detention in port. The order for an " embargo
or stop " to prevent vessels clearing out of our ports for enemy
ports specially refers to and includes " all persons and effects "
on board such vessels. These omissions bear witness to the

1 Document No. 25. ^ Document No. 18.

184 The Declaration of Paris

unnecessary haste with which the principles were sketched out.
It is the more surprising in the case of embargo, because special
emphasis is always laid by the neutral on the delay occasioned
by visit at sea, even if it is not followed by search. The delay
caused by an embargo must be ten times as great.

Similar criticism is applicable to the 3rd principle — that
" neutral goods, with the exception of contraband of war, are
not liable to capture under enemy's flag." An enemy's ship
caught running blockade is condemned because she is enemy
property. ' Neutral goods on board are condemned because
they are on board a ship running blockade. It was not intended
to give to the enemy flag the privilege of " covering " neutral
goods in such circumstances ; the principle is, therefore, in-
accurately stated.

The main defect of the statement of both the 2nd and 3rd
principles, however, is that the question, What is contraband of
war ? is left in the air.

The settlement of a list of contraband goods was of course
impossible at the closing meetings of a long Conference. The
idea of a list — or rather three lists — of " absolute contraband,"
" conditional contraband," and " free " or non-contraband goods,
prevailed till the present war. It was presumably intended to
preserve this classification in 1856 ; and as the plenipotentiaries
were not the persons best suited to frame such lists, their ulti-
mate settlement should have been left to experts to be thereafter
designated, as was done at Upsal in 1654.

From the point of view of other nations it was a dangerous
omission ; for it left open, and therefore England free to insist
on, the opposite principle that a belligerent has a right to pro-
claim his own list of contraband, and to add to it as necessity
arises, a necessity of which he is, and must be, the sole judge.

It could not have been assumed that there was any agree-
ment on the subject unless the Armed Neutralities had been for-
gotten. The countries of the League contended that a list of
contraband contained in a treaty between two Powers could be
extended arbitrarily to a third Power not a party to it, could
even be made applicable, at the will of one of the signatory
Powers, to a Power with which there was no treaty dealing
with the subject.

This is not the place to consider the subject of contraband
at any length ; but the question of " contraband by treaty "
is sufficiently clear to warrant this brief statement, which is
based on historical fact. The commercial relations between two
countries may be such that when they are settling questions
likely to arise in the event of one of them being at war, the

The Form in which the Principles are Stated 185

other remaining neutral, some questions may be dealt with
specially in such a way as to reduce friction in the circumstances
and preserve friendly relations. Contraband is such a question.
It must always be the desire of a country likely to remain
neutral in war to protect the trade in its staple industry. If
the country with which a commercial treaty is in process of
negotiation considers that, with due regard to its own safety,
it can exempt the produce of that industry from the goods
which it will seize on their way from that country to the enemy,
it may well do so, taking care to obtain a quid pro quo. But
this affords no reason why such goods going from another
neutral country to the enemy should also be exempted. This
is the simple inference to be drawn from the explanatory con-
vention of 4th July 1780 between Great Britain and Denmark.^
Both the 2nd and 3rd principles are, therefore, ineffective.

Even the cardinal principle of contraband, that goods
are only liable to be seized as such when they have an enemy
destination, was omitted. It is common knowledge that this is
fundamental to the idea of contraband, but a very considerable
difficulty has always existed in determining what is " enemy
destination." It is true that it became acute in respect of
broken voyages during the Civil War in 1865 over the Nassau
and the Matamoros cases, ^ when what was looked upon, and
is even now called, the American extension of the doctrine
was adopted. But the controversy dates back to the cases of
the Essex and the William,^ in 1805, and the lawyers were
perfectly familiar with it.

What, then, was the effect of the new declaration that " free
ships make free goods " on the doctrine of " continuous voyage" ?
Apparently no one was at pains to inquire. It certainly is very
difficult to answer the question. There seem to have been
only two alternatives : either that the doctrine of " continuous
voyage " should also be left in the air, the understanding being
that the new maxim would be interpreted subject to that
doctrine by the countries then for the first time adopting it ;
or, seeing that the maxim could not annihilate the doctrine
altogether, that any extension of the maxim beyond the cases
of the most palpable use of a neutral country for transport
of contraband to the enemy was assumed to be impossible.
I do not pretend to unravel the problem ; my object is only
to show at what a loose end the Declaration of Paris, hailed

1 De Martens, Recueil, ii. 102 ; (2nd ed.) iii. 177.

2 See Moixntague Bernard's History of the Neutrality of Cheat Britain
in the American Civil War, pp. 299 et seq.

35 c. Rob., 385.

186 The Declaration of Paris

with such profound joy by the neutrals as putting an end to
what they had to endure from England, left some of the most
important details of the principles it enunciated.

The absence of accurate draftsmanship is specially noticeable
in the statement of the 4th principle, that " blockades, in
order to be legally binding, must be effective, that is to say,
maintained by a force sufficient really to prevent access to
the coast of the enemy." It states nothing more than what
was in normal circumstances considered to be the law, without
explaining the meaning of the term " effective," nor what was
the proper method of preventing access to the enemy's coast,
which had always given rise to disputes. This serious criticism
was forcibly put forward by the United States Government
in the Second Marcy Note.^

The fourth principle . . . can hardly be regarded as
one falling within that class with which it was the object
of the Congress to interfere ; for this rule has not, for a
long time, been regarded as uncertain, or the cause of any
" deplorable disputes." If there have been any disputes
in regard to blockades, the uncertainty was about the
facts but not the law. Those nations which have resorted
to what are properly denominated " paper blockades "
have rarely, if ever, undertaken afterwards to justify their
conduct upon principle, but have generally admitted the
illegality of the practice, and indemnified the injured parties.
What is to be judged " a force sufficient really to prevent
access to the coast of the enemy," has often been a severely-
contested question ; and certainly the Declaration, which
merely reiterates a general undisputed maxim of maritime
law, does nothing towards relieving the subject of blockade
from that embarrassment. What force is requisite to con-
stitute an effective blockade remains as unsettled and as
questionable as it was before the Congress at Paris adopted
the Declaration.

The real question in dispute was whether the English prin-
ciple of blockade fulfilled the condition of effectiveness. That
principle was stated by Pitt in his speech of the 25th March
1801 : " Ports ought to be considered in a state of blockade
when it is unsafe for vessels to enter them, though the ports
are not actually blocked up." ^ This was the principle accepted
in the treaty with Russia in 1801 ^ : " Que, pour determiner
ce qui caracterise un port bloque, on n'accorde cette denomi-

^ Document No. 21.

2 Hansard's Parliamentary History, vol. xxxv. col. 1127.

3 De Martens, Sup., ii. 476 ; (2nd ed.) R. 2, vii. 260.

The Form in which the Principles are Stated 187

nation qu'a celui oil il y a, par la disposition de la puissance qui
I'attaque avec des vaisseaux arretes ou suffisamment proches,
un danger evident d'entrer."

Assuming the question of " paper blockades " to have been
actually under discussion, the 4th principle may certainly
be said to have settled it. But although the absence of all
record leaves us in the dark as to what was discussed, there is
little doubt that the principle was directed against the English
doctrine that blockades could be established bycruisersquadrons,
and that Lord Clarendon intended to throw over Pitt's principle
and the definition of the Russian treaty.

Sir William Harcourt in the Letter of Historicus, which
deals with the Law and Practice of Blockade, pointed out
the difference between this definition and the doctrine which
the Armed Neutrality sought to establish. The blockading
vessels were to be " arretes et suffisamment proches " ; in the
Russian treaty they were to be " arretes ou suffisamment
proches."

The principle as drafted did not settle our difference of
opinion with the continental jurists. The Courts could, there-
fore, still follow the precedents of the French wars in judging
the effectiveness of our blockades.

The same remark applies to blockades of other nations,
which in insurance cases may come before the ordinary Courts.
So long as no new interpretation was given to the legal mean-
ing of an " effective " blockade, the Common Law Courts would
still follow the precedents of the Prize Court.

An even more serious defect in the statement of the principle
was the application to blockade of the expression " legally
binding." The misuse of criminal law terms is characteristic
of every branch of the law applicable to belligerent and neutral
merchant. If the declaration of an " effective blockade " were
in itself effective ; if it did in reality, and not in pretence, create
an " offence " for the commission of which there were a real
penalty of seizure, then the term would have some meaning.
But as " the law " stands, it is just as if robbery were punish-
able only if the offender be caught in the act. The adventurous
skipper may snap his fingers at the biggest squadron of cruisers
if he can get through ; and in a gale of wind the rules of
" effectiveness " invite him to make the attempt, by allowing
the cruisers to draw off, while the blockade still remains techni-
cally " effective." What we call " the law of blockade " is a
mere tangle of words. It is not even, as it ought to be, based
on the principle " catch as catch can," for it is fettered with
this provision, that even though you catch you may only keep

188 The Declaration of Paris

if, in the opinion of a committee of experts, you could catch
other ships should they give you the chance of trying.

If the words " legally binding " mean anything it must be
this — that a declaration of blockade is a prohibition to neutral
ships to pass that way to the relief of the enemy, disobedience
being visited with the penalty of condemnation as for a real
" offence." But were that so, then, if the ship were found in
harbour when the port falls into the hands of the belligerents,
she would still be liable to condemnation — but she is not.
Success purges the " offence," and once in port at anchor, the
risk of seizure is over. Or again, breach of blockade may be
by getting out as well as by getting in. According to the
English view of the law, the risk of seizure continues till the end
of the outward voyage. If it were an " offence," and not a mere
risk of getting caught, then the vessel would be liable to be
captured on her next voyage. But it is clear that when the
voyage is over " limitation " has set in.

That these and many other peculiarities in the " law " are
capable of satisfactory explanation is another matter ; but the
discussion of it must be postponed for the present. The point
emphasised now is that, granting it was advisable to proclaim
the principle, and accepting Lord Clarendon's view that it was
politically necessary to abandon Pitt's views of blockade, some
attempt should have been made soon afterwards to turn the
principle into agreed and coherent rules. But this important
work was not attempted till the Congress of London sat in 1908 ;
and no greater condemnation could have been pronounced on
the inchoateness of the principle laid down by the Declaration
of Paris than the statement in Sir Edward Grey's invitation
to the Powers, that " the discussions which took place at The
Hague during the recent Conference showed that on various
questions connected with maritime war divergent views and
practices prevailed among the nations of the world." ^ This
was specially applicable to blockade, for the principles acted
on by England and other countries in regard to it were widely
divergent.

^ Correspondence respecting the International Naval Conference in
London, 1908-9 ; Misc. No. 61 (1909).

The Effect of War on Treaties 189

The Effect of War on Treaties, and especially on this

Declaration.

As a general proposition it is undisputed that treaties come
to an end when war breaks out between the nations which have
made them. The question was raised very inadvisedly in con-
nection with the Declaration of Paris, in the debate of 1862, by
Sir George Cornewall Lewis, Secretary of State for War, who
seems to have asserted that it would not remain in force if war
broke out between any two of the signatory Powers. " By
international law," he said,

you may make a valid engagement with respect to the
principle that the neutral flag covers enemy's goods ; but
when you go to war with a nation, war puts an end to
all treaties and engagements in the nature of a treaty. If
we had a treaty with the United States recognising the
principle that belligerents were to recognise one another's
mercantile marine, the very act of war would have put an
end to that treaty.

As to the Declaration of Paris, I deny that it must be
binding in the event of war. It is binding in respect of
neutrals in time of war. No doubt we are bound in respect
of France or Russia if we are at war with the United States ;
but it is an absurdity to suppose that if we were at war
with France or Russia, it would have any binding effect
upon us, except in regard to our honour. All I say is, it
is not binding by international law.

This very obscure statement naturally aroused great indigna-
tion. Sir Stafford Northcote objected to a Minister of the Crown
using such language. He cited Kent as an authority for the
principle that treaties which are made in anticipation of war
remain binding during hostilities.

As a general rule, the obligations of treaties are dissi-
pated by hostilities ; but if a treaty contains any stipula-
tions which contemplate a future state of war and make
provision for such an exigency, those stipulations preserve
their force and obligation when the rupture takes place.
The obligation of keeping faith is so far from ceasing in
time of war that its efficacy becomes increased, from the
increased necessity for it.^

^ International Law, Abdy's ed., p. 393.

190 The Declaration of Paris

He also mentioned familiar cases in which this principle
must be true ; as where the time for belligerent subjects to quit
the country, or questions as to exchange of prisoners of war,
have been agreed to. Clearly war could not put an end to such
provisions.

John Bright also cited authorities to uphold the morality
of nations and the faith of treaties. From Wheaton —

There might be treaties of such a nature as to their
object and import as that war would necessarily put an
end to them ; but where treaties contemplate a permanent
arrangement of territory, or other national rights, or in
their terms were meant to provide for the event of an in-
tervening war, it would be against every principle of just
interpretation to hold them extinguished by war.^

And from Sir Robert Phillimore —

The general maxim that war abrogates treaties be-
tween belligerents must manifestly be subject to limitation
in one case — namely, in the case of treaties which expressly
provide for the contingency of the breaking out of war
between the contracting parties.^

It may be unscientific, but it certainly has a moral weight
of some practical value, when we say that to violate a treaty is
a breach of the Law of Nations, in spite of the absence of some
higher compelling force, something in the shape of a sanction.
The international " law " as to the observance of treaties can
be put on no more secure ground than that nations are expected
to carry out their engagements in the same way as individuals are
by law compelled to carry out theirs. The breach of a treaty
engagement may lead to a rupture with the other contracting
party, and rupture to war, if that other can put sufficient forces
in the field, or ships upon the sea ; other States will not interfere
unless they too are parties to the engagement. It is no concern
of theirs ; but they will obviously be chary of entering into
agreements with a State which has once made default in observ-
ing its treaties.^

^ International Law (Dana's edition), pp. 352, 363 n.

^ International Law, iii. p. 662.

3 The meaning of this paragraph may be illustrated by the case of
Belgium. Germany's invasion in breach of her guarantee of Belgium's
neutraUty has generally been spoken of as a "breach of international law,"
as if the observance of a treaty were the subject of a rule like any other
governing the intercourse of nations. But when we say that the violation
of a treaty obligation is a breach of the Law of Nations, we mean to imply
that that law in dealing with nations is based on the same principle as
the law which deals with individuals, and that one of those principles is
that it is wrong to break an obligation.

The Effect of War on Treaties 191

War does, as a fact, destroy all relations between the belli-
gerents ; obviously, therefore, any agreements on which their
relations rest must cease to exist on the outbreak of hostilities,
do require renovation on their cessation.^ But seeing that the
obligation to observe treaties can be put no higher than that it
rests on the national honour (which, however, the majority of
States deem the highest ground), it is clear that the case of
those treaties which profess to regulate the conduct of the con-
tracting States in the event of their falling out — " ce qu'a Dieu
ne plaise " — is summed up accurately by Kent, if we attribute
to the word " obligation " its exact international meaning,
when he says : " The obligation of keeping faith is so far from
ceasing in time of war, that its efficacy becomes increased, from
the increased necessity for it."

If one State agrees with another State that in the event of
war between them certain things shall not happen (as that
their traders shall not be disturbed in their business for a
certain period), it is a mere chaos of thought to say that when
war does break out those things may happen, and, in that
instance, the traders be disturbed.

It is the necessity for an honourable fulfilment of obligations
as to conduct in war, increased tenfold by the fact of obligations
undertaken mutually by many States, which is the only sanction
for Hague Conventions.

Anything more injudicious can hardly be imagined than for
Sir George Cornewall Lewis, in the course of a highly contentious
debate as to whether the Government had been wise to adopt
a maxim limiting belligerent action, to suggest vaguely that
in the event of war the maxim would cease to bind us. Even
if it were true it was quite unnecessary, and inevitably led some
speakers into a side-track, confusing an already sufficiently
confused issue.^

^ For an illustration, see " Declarations d'adh^sion des Etats allemands
a la remise en vigueur des Trait^s ant^rieurs a la Guerre," January-February
1872 {State Papers, vol. Ixii. p. 834).

* The idea that war abrogates all treaties, including those made in
direct contemplation of war, has at times been really considered as
dangerous. It is specially referred to, and steps taken to counteract it,
in the treaty of 1871 between Italy and the United States {State Papers,
vol. Ixi. p. 88).

By Art. XXI. provision is made, inter alia, that in case of war between
the High Contracting Parties (which may God avert), six months is to be
allowed for subjects to retiim to their own country : " And it is declared
that neither the pretence that war dissolves treaties, nor any other what-
ever, shall be considered as annulling or suspending this article ; but, on
the contrary, that the state of war is precisely that for which it is provided,
and during which its provisions are to be sacredly observed as the most
acknowledged obligations in the law of nations."

192 The Declaration of Paris

Sir George was reputed to be the " precisest of reasoners
and the most logical of men " ; but in answer to Mr Thomas
Baring's criticism, he found no other explanation of his cryptic
saying than the following : —

This is so important a point that I should be sorry
if any misunderstanding arose. What I meant to say,
and what I believe I did say, was this : that I conceived
the Declaration of Paris to be binding as between this
country and neutrals during the existence of war, and to
be equally binding with a treaty, though it was only a
Declaration ; but that if we were at war with any of the
parties to that Declaration, then, like other treaties, it
would cease to have a binding effect as regards the
belligerent.

If words, carefully collated with the best authorities, could by any
possible means avoid a pernicioTis doctrine without getting involved in it
themselves, this article shoiild have achieved it. But if all treaties, even
those which contemplate a state of war and make provision for it, are
annihilated by war, then this treaty would equally suffer that fate.

The curious point about this treaty is that this provision is not intro-
duced into the other articles which contemplate a state of war arising
between the two countries, and it might be contended, on the principle
indtisio uniiis exclusio altering, that the other provisions had been left
to their fate when war should arise.

Thus by Art. XII. the High Contracting Parties agree " that, in the
unfortunate event of war between them, the private property of their
respective citizens and subjects, with the exception of contraband of
war, shall be exempt from capture or seizure, on the high seas or else-
where, by the armed vessels or by the military forces of either party,"
but no reference is made to " the pretence that war dissolves treaties " ;
nor is it mentioned in Art. XIII., which defines what " ought to constitute
a legal blockade."

If, however. Sir George Cornewall Lewis did not mean to assert the
doctrine broadly, that war does dissolve all treaties, but meant some-
thing quite different which he tried to explain, then it really was hardly
worth while to try to avoid an imaginary doctrine by such an artificial
set of words.

In connection with this treaty it is interesting, in reference to what
I have said in the text as to the doubtful meaning of " adoption " of this
maxim, to turn to Art. XVI., in which the contracting countries accepted
it. There is this proviso : —

" Provided that the stipulations declaring that the flag shall cover the
property shall be understood as applying to those Powers only who recognise
this principle ; but if either party shall be at war with a third, and the
other neutral, the flag of the neutral shall cover the property of enemies
whose Governments acknowledge this principle, and not of others."

What this means I do not know. Does it apply only to Governments
which recognise the principle generally as part of their system of mari-
time law, or does it include those who have included it in their treaties
with some countries but not with others ? And to which form of " recog-
nition " does it relate ? To the reciprocal engagement when the parties
are at war with one another ; or to the more usual form, when one of the
parties is at war and the other is neutral ?

The Effect of War on Treaties 198

This does not clear up what he had said in his speech : "If
we had a treaty with the United States recognising the principle
that being belligerents we were to recognise one another's
mercantile marine, the very act of war would put an end to
that treaty."

He was referring to the principle, much advocated during
the debate, of immunity of private property at sea, and what
he said was that, if, accepting this principle, we entered into a
treaty with the United States, in the event of war private
property at sea would cease to be immune. I am under the im-
pression that he was endeavouring to understand and explain
Lord Palmerston's statement that " free ships make free
goods " deals entirely with the relations between belligerents
and neutrals, and that the relations of belligerents with one
another are only affected by the " immunity of private pro-
perty " principle. But having asserted that were this provision
in a treaty it would not bind the parties if they were at war,
Sir George Cornewall Lewis went boldly on and applied this
very heretical doctrine to the Declaration of Paris : " If we
were at war with any of the parties to the Declaration, then,
like other treaties, it would cease to have a binding effect as
regards that belligerent." Men so wide apart in their habits of
thought as Sir Stafford Northcote and John Bright united in
condemning such language in the mouth of a Minister of the
Crown. Did he mean that in such an event both belligerents
might commission privateers, might declare blockades which
were not " effective," might seize neutral goods on enemy ships,
and enemy goods on neutral ships ? Did he mean that the
Declaration of Paris, in spite of all the applause which had been
lavished upon it, in spite of all the gratitude with which it had
been acclaimed by the neutrals, would be nulle et non avenue ?
Clearly he did not mean this, because he " conceived that the
Declaration would be binding as between this country and
neutrals during the existence of a war " ; and three of its
principles affect neutrals. But the abolition of privateering
would, according to this view, not operate as regards the belli-
gerent ; therefore his ships might be seized by our privateers.

In endeavouring to unravel the complicated idea that any
principle of the Declaration should, in the event of our being
at war, be binding on us in regard to the neutrals, and not
binding as regards the other belligerent, I propose to confine
my inquiry to the " free ships free goods " principle. What is
true of that must also be true of the others.

One preliminary point must first be made clear. " Free
ships free goods " when introduced into treaties may assume one

194 The Declaration of Paris

of two distinct forms : in the first and common form the right
of free carriage for the enemy of one party would be granted
to the other party remaining neutral ; in the second form the
right of free carriage by all neutrals was acquired by each
party in the event of war.^ The essential difference between
the two forms is that in the first the right of free carriage was
given to one potential neutral ; whereas in the second the right
would be given to one potential enemy. Complicated questions
of construction arise in regard to the question whether the con-
verse right enures to the enemy under the first' form, and to all
neutrals under the second ; but they need not detain us for the
present. Nor need we consider what the resultant rights to
enemy and neutrals would be if several independent treaties,
containing either of the forms, were entered into by each pair
of a group of three or more States. This problem arises under
the combined operation of the treaties of Utrecht between
England and France, France and Holland, and the treaty of
Westminster between England and Holland. It would have
been raised in a still more acute form in the case of the inde-
pendent conventions proposed in 1862 to be entered into by
the United States with each of the adherent Powers to the
Declaration of Paris. ^ These subsidiary questions do not arise
under the Declaration, which was a multilateral agreement,
governing the relations between every adherent State with
every other adherent State. It is not debateable that it governed
those relations, first, between each belligerent, secondly, be-
tween each belligerent and each neutral.

This may be tested in the concrete. States A, B, C, D
agree that, as between themselves, the neutral flag shall cover
enemy goods. This must mean that if A is at war with B,
the flags of C and D shall cover A's goods as against B and B's
goods as against A. So if B is at war with D, that the flags
of A and C shall cover B's goods against D and D's goods
as against B. Neither Lord Palmerston's dictum nor Sir George
Lewis's explanation will stand the test of this most elementary
analysis. But all the Powers did not adhere, and the question
of the application as between adherent and non-adherent States
is one of great complexity which requires special consideration.

^ I am doubtful whether any example of this form is to be found. It
would be worded thus : "In the event of the contracting Parties being
at war, then their goods shall be respectively free voider neutral flags."
This, however, would be the consequence of an adoption of " free ships
free goods " generally. See pp. 83, 84.

» See p. 159.

The Effective Operation of the Declaration 195

The Effective Operation of the Declaration that " Free
Ships make Free Goods. '^

We now come to the vital question involved in the Declaration
of Paris — limiting the inquiry, as before, to the 2nd principle,
What was its effective value as an international agreement ?
The States of the world came to be divided into adherents and
non-adherents — sheep and sea-wolves. They did not all and all-
at-once assume the sheep's clothing. There was on the part of
the majority extreme haste to adhere ; but some made excuses.
An examination of the consequences of the Declaration while
some States abstained is therefore necessary. It will enable
us to test its practical value, to see whether the Congress really
did achieve anything worthy of the congratulations which
the plenipotentiaries poured out so lavishly upon their work :
whether it was practical statesmanship.

The adherent Powers were of two categories : those whose
general law allowed them to seize enemy goods on neutral ships,
and those who, either by express provision of their law or by
conventions with other States, recognised, or asserted that they
recognised, the freedom of enemy goods on neutral ships.
The fact that the first category included at the time only one
State, England, makes the inquiry, as it affects the statesmanship
of the English plenipotentiaries, all the more interesting and
important. For simplicity's sake we may assume that the
non-adherent Powers resembled the second category of the
adherents in their recognition of the maxim.

Now the Declaration contained a provision that "it is not
binding except as between those Powers who have adhered to
it," or, more plainly, as Lord Palmerston put it in his despatch
of the 13th April 1856, " it shall not be applicable to the rela-
tions of the Declaring Powers with States which shall not have
acceded to the Declaration." The meaning of this provision
must be — it was clearly Lord Palmerston's meaning — that those
of the adherent Powers who did not recognise the maxim in
their general law (in other words, England) would continue
legitimately to enforce their old practice of seizing enemy pro-
perty on neutral ships in their relations with any non-adherent
Power. During war the relations of any adherent to any non-
adherent may be those of belligerency or those of neutrality.
Therefore the meaning of this provision in its application to
England is, that whether a non-adherent Power be the enemy

196 The Declaration of Paris

at war with England, or be neuter when England is at war
with another Power, the ancient maritime law of England re-
mained in force in regard to it, with the express approval of
the other adherent Powers.

This being so, it is obviously necessary to do now what
ought to have been done ages ago : test the application of this
principle to the various cases which might occur.

I assume England to be at war, because concrete cases are
easier to handle : we ought thus to be able to reach the precise
consequences of England's adherence to the Declaration.

Case A. — War between England and an Adherent

Power.

i. Where the Neutral is also an Adherent Power. — The maxim
here has full play, for both enemy and neutral come within the
express scope of the Declaration. «

ii. Where the Neutral is a Non-adherent Power. — Under the
express terms of the Declaration, it is not binding as between
England and such a neutral. Therefore that Power ought not
to be entitled to the benefit of the maxim. But the adherent
enemy is entitled to that benefit. If this neutral were allowed
to carry this enemy's goods " free," the express right which
England retained would be nullified, and the result would be to
make nonsense of the condition of the Declaration.

The meaning of the limitation of its operation must therefore
be, that an adherent belligerent is not entitled to the benefit
of free carriage of his goods by a non-adherent neutral.

Case B. — War between England and a Non-adherent

Power.

i. Where the Neutral is also a Non-adherent Power. — The
maxim here disappears, for both enemy and neutral are outside
the Declaration.

ii. Where the Neutral is an Adherent Power. — Under the
express terms of the Declaration, it is not binding as between
England and such a belligerent. Therefore the goods of that
Power ought to be liable to seizure. But the adherent neutral
is entitled to the benefit of the maxim. If this enemy were
allowed to have his goods carried " free " by this neutral, again
the express right which England retained would be nullified,
and again the result would be to make nonsense of the condition
of the Declaration.

The meaning of the limitation of its operation must there-
fore also be that an adherent neutral is not entitled to carry

Conditions attached to Adherence to Declaration 197

" free " the goods of a non-adherent belHgerent. But if this
be so, then the Declaration has destroyed the historic contentions
of the neutrals as to the meaning of the maxim.

But in this case the confusion is more extended : for this
enemy is neither bound, nor expected, to observe the maxim in
regard either to this neutral or to England. Therefore, unless
this country's general law, as distinct from treaties, prevents
him, he will not be concerned with the fact that both England
and the neutral are adherent Powers, but he will seize, under
the old maritime law, English goods on these neutral ships.

Case C. — ^War between two Non- adherent Powers ;
England, as well as other Adherents, being
Neutral.

In this case adherent neutrals will take no benefit from their
Declaration, for they have expressly excused both belligerents
from observance of the maxim. If, therefore, they hope to
carry goods for either belligerent, the other will probably seize
them, and will certainly pay no regard to assertions of a " right "
which he is expressly entitled to disregard. The neutrals' only
course would be to form another Armed Neutrality, which,
unless the belligerent's Government were affected with the same
nervousness as many politicians confessed to in 1854, would
probably suffer the same disregard as its predecessors, and the
Declaration would result in nothing.

Judged thus by its practical results, the Declaration cannot
be said to be satisfactory. Yet they could easily have been fore-
seen had someone taken the trouble to think out the not very
complicated consequences resulting from twice ten or two dozen
States entering into a reciprocal engagement to adopt this two-
edged maxim. They are not to be avoided by declaring that
it has only one edge.

The Conditions attached to adherence to the Declaration :
Indivisibility of the four Principles.

The Declaration was agreed to on the 16th April 1856. The
statement of its principles was followed by an engagement on
the part of the plenipotentiaries to bring it to the knowledge
of the States which had not taken part in the Congress, and to
invite them to accede to it, doubting not that the gratitude of

;|^8 The Declaration of Paris

the whole world for the maxims they had proclaimed would
lead to their general adoption. The efforts of the Governments
would thus be crowned with full success.

It was then resolved as a necessary corollary that

La prec^dente Declaration n'est et ne sera obligatoire
qu'entre les Puissances qu'y ont ou qui y auront accede.

At the last sitting of the Congress, on the 16th April, a
further resolution was taken, that the four principles were to
be one and indivisible. Adherence was to be " all in all or not
at all." This condition would result naturally from adherence
to the Declaration. Partial adherence to such a document
would be impossible without an express provision recognising
it. But in order to assure this impossibility the principle of
** indivisibility " was specially emphasised. The signatory
Powers pledged themselves, and required adherents to pledge
themselves, not to enter into any engagement on the subject of
neutral rights which was not based on all four principles.

Sur la proposition de M. le Comte Walewski et reconnais-
sant qu'il est de I'interet commun de maintenir I'indivisi-
bilit6 des quatre principes mentionn^s a la Declaration
signee en ce jour MM. les Plenipotenti aires conviennent que
les Puissances qui I'auront signee ou qui y auront accede,
ne pourront entrer, a I'avenir, sur I'application du droit des
neutres en temps de guerre, en aucun arrangement qui ne
repose a la fois sur les quatre principes de la dite Declaration.

The Plenipotentiaries thus deliberately interposed the con-
dition of the indivisibility of the four principles, not merely
before their aspiration to include them in the Law of Nations
could be fulfilled, but before any one of them could be asserted
to be a principle of that law. The United States Government,
in its refusal to adhere, pointed out that the principle of
" indivisibility " did not form part of the Declaration, which
was perfectly true ; but the claim based on it, that therefore
the United States could adhere to some of the principles and
not to all, could not be admitted in the absence of express
permission.

The principle of " indivisibility " carries with it some curious,
though latent, consequences. It disposes for good of the asser-
tion that " free ships free goods," for example, is, or ever was,
of itself and by itself, a " principle " of the Law of Nations.
Specially, this could never be asserted by a non-adherent against
an adherent Power. It is also conclusive evidence of the opinion
of a large number of Powers against the validity of such a

Conditions attached to Adherence to Declaration 199

contention made by one non-adherent Power against another
non-adherent Power. It reduced the maxim from the lofty
position in which it had been placed by Frederick the Great,
by Catherine, by Paul, by Bonaparte, of a primitive right
included in the code which Nature had devised for the govern-
ment of nations, to a principle depending on express consent.
Not only that, it was not a principle which could be consented
to by itself, but only in connection with three other principles.
The pretension that it was, or is, or ever could be again asserted
to be a neutral " right," was once and for all destroyed.

So much of international thought and writing has centred
round the Declaration, much of it of the loosest kind, some of
it learned, some of it painfully ignorant, that it is worth while
considering briefly the wisdom of this condition. For, assum-
ing all the virtues with which each of the four principles has
been endowed by enthusiasts, the connection between them,
the suggestion that their interdependence was asserted for
the " common interest," is not so obvious as not to require
some explanation. Indeed it ignored the link of indivisibility,
recognised by the common practice of nations in the early
treaties, which connected " free ships free goods " with " enemy
ships enemy goods." The Armed Neutralities had been so far
logical. While they insisted on the freedom of enemy property
under the neutral flag, they left untouched the French and
Spanish practice of seizing neutral goods under the enemy
flag. It is perfectly true that from the standpoint of the pre-
tended inviolability of neutral commerce this practice was as
bad as seizing enemy goods under the neutral flag. But the
linking together of the two maxims under the principle of the
flag was based on logic, and they are the only two principles
which could be called scientifically " indivisible."

The opinion is certainly justified that zeal for the gradual
development of international law, for the " progress " which
M. Drouyn de Lhuys had in his mind, might well have been
contented with the acceptance of one or two of the principles
as a commencement of execution of the plan. Seeing that
privateering was " un des plus grand fleaux de la guerre,"
something worthy of the gratitude of the whole world would
have been achieved if its abolition had been accomplished.
If Lord Clarendon was bent on sacrificing something, seeing
that England was quite as bad an offender as any other country
in this matter, if not the worst of all, he might have devoted
his energies to that. But by tying it on to the acceptance of
other doctrines, he ran the risk of jeopardising the complete
carrying out of the scheme, as in fact he did.

200 The Declaration of Paris

So as to " free ships free goods," which was the favourite
maxim of the United States. All that had passed in 1854 in
regard to its adoption, and the rejection of " enemy ships enemy
goods," showed that unanimity here was probable, and " pro-
gress " feasible. In the First Marcy Note,^ acknowledging the
Declaration to the neutrals in 1854, the United States Govern-
ment had expressed the hope that " free ships free goods "
might become a settled principle, so as " to prevent it from
being called again in question from any quarter or under any
circumstances." The United States had proposed to the Powers
in 1854 that simple conventions should be entered into recog-
nising the maxim, as well as the freedom of neutral property
on enemy ships. Russia, Peru, and the Two Sicilies accepted
the invitation.^ In order to achieve the universal acceptance
of these two principles, there was a stipulation in the Russian
Treaty—

que toutes les nations qui consentiront ou pourront con-
sentir a acceder aux regies du premier article de cette
convention, par une declaration formeUe stipulant qu'elles
les observeront, jouiront des droits resultant de cette
accession de la meme mani^re qu'auront lieu la jouissance
et I'observation par les deux puissances signataires de la
presente convention.

France was on the point of signing.

The United States, in refusing to adhere to the Declaration
of Paris, did not hesitate to show irritation that its own project
should be superseded by one which made the acceptance of the
two principles only possible if they were linked on to two
others, one of which was unacceptable, and the other of ques-
tionable value. A reply to the Second Marcy Note would
have been interesting, not only because it would have answered
the objections raised to the abolition of privateering, but also
have explained why the principle of " indivisibility " had been
insisted on. The opportunity of explaining the reason for the
condition passed away, and it has never since been attempted.
The Swedish letter of adherence to the Declaration hardly
furnishes a satisfactory explanation. If Lord Clarendon had
suggested as a bargain that we should accept " free ships
free goods," provided that the United States would abandon
privateering, it would have been intelligible, resembling the
mutual surrender of principle by England and France in 1854.
But the strange part of his defence is that Lord Clarendon
asserted that we had got the benefit of the abandonment of

* Document No. 8 J. » Document No. 16.

Conditions attached to Adherence to Declaration 201

privateering as a quid pro quo for our acceptance of the maxim,
the real fact being that we had abandoned both privateering,
and our principle of seizing enemy goods on neutral ships, in
return for nothing at all.^

So as to blockade. No international issue was ever so
clear-cut. England was again, in the eyes of " all Europe,"
^vie great offender. The French wars had shown the extent
to which blockading could be carried. The English prin-
ciple was well known : Pitt had declared it ; the treaty
with Russia in 1801 had accepted it. The Continental Powers,
ever since the days of the Armed Neutralities, had insisted
that more precision was required, and that ports should be
closely blocked by stationary ships. The Council Board was
set, full powers to discuss this question, then or at a later
date, could have been obtained : here was a brilliant occasion
" pour ^lucider " cette question, " poser certains principes,
exprimer des intentions, faire enfin certaines declarations "
with regard to this thorny question. But Lord Clarendon
would neither struggle to maintain the English principle of
blockade, nor yet give it up unless he also gave up our principle
of seizure. Yet this was essentially a matter capable of being
argued on war principles, as distinct from doctrinaire ideas.
The admirals of the Allied fleets had shown what sailors thought
of the matter, for they agreed to blockade the Black Sea ports
by stationing their squadrons at the entrance of the Bosphorus,
to the dismay of the statesmen and lawyers at home. The
occasion for sailors and lawyers to discuss and settle their long-
standing dispute was at hand ; but it was allowed to pass.

* From a memorandum in a biindle of " Miscellaneous Papers " in the
Public Record Office, discovered since the statement in the text was in
type, it wo\ild appear that Lord Clarendon had had this idea in his mind for
some time. Portugal had received the invitation from the United States
to join in the treaty which had been proposed in 1854, and sought Lord
Clarendon's advice through our Ambassador, Sir Richard Pakenham. Lord
Clarendon wrote : "It must be for the Government in question to determine
whether it shotdd bind itself by a treaty engagement to recognise the
principle that free ships make free goods, but I strongly advise that the
adoption of such an engagement with the United States should be made
conditional on the abandonment of the practice of issuing letters of marque.
Any maritime Power at war with the United States would find an enormous
advantage in the prohibition of a system so attractive to the adventurous
spirit and buccaneering habits of American citizens, and to which they
would resort with great success and in formidable niunbers."

202 The Declaration of Paris

VII

The Courts and the Declaration,

There are certain documents of which the Courts take
" judicial notice," that is to say, they interpret and apply their,
without formal proof of their existence. Their contents form
part of the knowledge which reposes in the " judicial bosom."
Thus the statutes of the realm may be cited in argument with-
out proof that they have been passed. But treaties are not in
this category. They are, it is true, part of the law of the land ;
but when they are relied on they must be " proved " : brought
formally to the notice of the Court. The method of proof
has been simplified by Lord Brougham's Evidence Act (No. 2)
of 1851 ; but they have not been raised to the dignity of
" judicial notice." For some unexplained reason, treaties and
other international documents are not communicated to the world
at large — which includes the Bench of Judges. Their publica-
tion in the Gazette is not required ; and Lord Brougham's Act
does not go so far as to authorise the admission in evidence of
King's printer's copies.

Our methods in such matters are slipshod. Even in the
case of statutes, we have no formal " promulgation " such as
obtains on the Continent. In France it is a fundamental
principle that a law does not come into force until it is pro-
mulgated, that is, published in the official Gazette. But in
England a statute is in force from the moment of the King's
assent ; it does not depend even on the issue of the King's
printer's copy. The maxim that ignorance does not excuse
breaches of the law applies from that moment to all its
provisions, how many or various they may be, or intricate
their meaning. In the case of a criminal statute, breach of its
provisions five minutes after it is passed is an offence punishable
by the extreme penalty provided the Judge thinks fit to impose
it. This is an old-established rule of our constitution which
might, if enforced to the letter, be productive of infinite hard-
ship ; but, as Sir George Jessel used to say, " Such is our law."

It is possible that the rule as to " judicial notice " may have
sprung from the old struggle between Parliament and the King,
for the shadow of a constitutional principle is discernible in the
distinction which is made between statutes and treaties. The
Judges take " notice " of an Act of Parliament, but not of an
Act of the King. " King-made law," which includes treaties,
proclamations, Orders in Council, and even treaties which by

The Courts and the Declaration 203

statute require an Order in Council to bring them into effective
operation, must be proved ; though sometimes, as in the case
of extradition treaties, they are ordered to be published in the
Gazette.^

This brief outline of a highly technical subject has an
important bearing on the question in hand — the recognition
of the Declaration of Paris by the Courts. It is conceivable
that a document of which the Court cannot take " judicial
notice " may, by frequent reference, become so well known
to the individual Judges that they would be justified in waiving
formal proof. But this is " judicial familiarity," and not to be
confused with " judicial knowledge." It is no disrespect to the
Common Law Judges to say that they have not even judicial
familiarity with the language in which the principles of the
Declaration of Paris are expressed.

How then would it be proved, in order to establish the
proposition, in an insurance case springing out of the war, that
by English maritime law " free ships make free goods " ? The
only official document in which the Declaration is contained
is the White Paper " presented to Parliament," in which the
protocols of the Congress of Paris are printed in French, with an
English translation. It has never officially been put into any
other form, nor published independently. The spirit which kept
it secret has prevailed to the end. The constitution does not
make publication a condition to the efficacy of a treaty ; but
neither does the law authorise the Courts to accept the print of
a protocol as judicial proof of an international agreement.

In the case of executive orders and rules made in virtue of
statutes, it is customary to provide that they shall be laid
on the tables of the Houses ; and, unless the circumstances are
exceptional and require immediate executive action, they
become operative as part of the parent statute, as amended by
motion, within a prescribed period, usually forty days. But
this custom has not been extended to treaties or other acts
done in virtue of the prerogative. The result is, therefore, that
there has been no publication of the Declaration of Paris which
is receivable in evidence.

These somewhat vague principles apply to the Prize Court,
which is set up by the King to administer the Law of Nations.

^ Before the publication of the Statutory Rules and Orders chaos reigned
in regard to obtaining authorised copies of Orders in Council, treaties,
and other similar documents. Pubhcation in the Gazette, though not
reqviired by law, was assimaed to be all-sufficient notice to all whom they
might concern, the idea being that it was the duty of all good citizens to
be subscribers to that periodical.

204 The Declaration of Paris

It has been said that the Court itself sits under the authority
of the Law of Nations, is, so to speak, a " Law of Nations
Court." In England, the Court of Admiralty is invested with
jurisdiction in prize, administering a law which lies outside the
great body of the law of England, but, when occasion arises,
also administering the municipal law of the country.

The Prize Court has gradually assumed to itself the functions
of a Court of Law, and the Judge exercises his functions in
accordance with the notions fundamental to the administration
of justice in England. The principle of " judicial knowledge "
probably therefore applies. The provisions of the Declaration
of Paris have become, from frequent reference, familiar to the
Judge ; but it is doubtful whether there is so radical a difference
between a Prize Court as now constituted and a Court of Law
as to warrant any further departure from the strict rules of
legal procedure.!

A reference to the French procedure adopted in the case of
the Declaration of Paris will throw light on the peculiarity of
our own practice. It was promulgated by Imperial decree.^

This decree fulfilled the legal forms required by the French
constitution for making the Delaration operative ; its principles
thenceforward became the law of all the Courts, and it is the
notice, required by French law, to all the world that France
is an adherent Power. This fact might well be in question in
a Common Law Court ; it would be proved in the same way
as any other question of foreign law.

The manner in which a State has adhered to the Declara-
tion is therefore important, and is a question which the Courts
might have to consider.

* It is popularly supposed that the Prize Courts in all countries are
judicial tribiinals. There is not much information available on the subject,
but it is certain that in some countries they are administrative CoTirts.

The Decree of Napoleon "portant institution d'un Conseil de Prises"
(Document No. 6 B), issued before the Russian War, shows that the con-
stitution of the French Prize Courts differs essentially from our own. It
is a Conseil, not a Cour de Prises. It is not suggested that such a Conseil
does not give its decisions in accordance with international law ; the fact
that conclusions are given shows that the Procureur-Oeneral, or some other
member of the Parquet, is appointed to the Conseil, and these would
naturally be in accordance with international law. During the Russian
War M. de Pourtalis, an eminent French lawyer, was the legal member of
the Conseil.

An example of the form of the decision, in the name of the King, will
be found in the State Papers, vol. viii. p. 423. It was given in December
1819, and terminated the long correspondence between the United States
and France respecting the burning of two American vessels in 1811 by
French frigates after the alleged revocation of the Berlin and Milan
Decrees.

* Document No. 18.

The Courts and the Declaration 205

In the case of Switzerland and a few other countries the
adherence was by arretS, a copy of which was included in the
" act of adherence." The meaning of the correspondence
between England and Germany in 1870, referred to in the
chapter on " The Adherence of the Powers " is now clear.
At the outbreak of war Lord Granville had asked for a formal
notification from the belligerents that they would observe the
principles of the Declaration. The Prussian answer was that
a law had already been passed, and nothing further was there-
fore required.!

But what would happen in the case of a country which had
only adhered by official letter, such as those which have been
collected in the State Papers ? There are certain occasions on
which the Courts are authorised to apply to a Secretary of
State for official information, as in the case of the existence of
" foreign jurisdiction." ^ The authority of a statute making
this information evidence is, I believe, requisite ; it is doubtful
whether there is any recognised principle.

Another old rule of procedure arising out of war must be
noticed. An alien enemy has no loctts standi in the Courts,
even in prize proceedings in w^^ich he may have a considerable
interest. Neutral captains were allowed to claim the immunity
of enemy cargoes as well as of their own ships. " In the last
war the master was general claimant for himself and everybody
concerned " {Jungfre Maria).^ This appears at first sight to be
an evasion of the old practice rule ; but it was probably no
more than an application of a legal principle. The cargo was
the property of an enemy subject in custody of the ship, and the
ship's owner, or his legal representative, the master, waCs allowed
to put the treaty before the Court, not on the enemy owner's
behalf, but in his own right as legal custodian. The owner
derived the benefit of it.

The Lords went even further in the Yong Vrow Adriana,*
in 1760. The Vice-Admiralty Court of Gibraltar had restored
the ship as belonging to neutrals, but had condemned part of
the cargo as enemy property. The owners of the cargo appealed,
and the appeal was prosecuted in the name of the master,
the original claim having been in his name. The Lords declared
" that the captain is not now at liberty to appeal, under
privilege of the ship, but that the owners may use him on the
appeal as a claimant of this property."

1 See p. 135.

* Foreign Jurisdiction Act, 1890, s. 4.

» Hay and Marriott's Rep., p. 283. * Burrell, 178.

206 The Declaration of Paris

The question has now been put on a new and entirely satis-
factory footing by the decision of the late President, Sir Samuel
Evans, in the Schooner Mowe.^ He recognised the injustice of
not allowing an enemy subject to avail himself of a provision
in a treaty containing " stipulations which contemplate a
future state of war and make provision for such an emergency,"
and destroyed the old rule that an alien enemy is not persona
standi in judicio where such a provision would enure to his
benefit. He held that " whenever an alien enemy conceives
that he is entitled to any protection, privilege, or relief
under any of the Hague Conventions of 1907, he shall be
entitled to appear as a claimant, and to argue his claim
before the Court."

This principle applies to the Declaration of Paris ; an
enemy subject therefore may now argue his claim to the
privilege of " free ships free goods." Any. doubt as to the
binding force of treaties of this kind during war, such as was
raised in the House of Commons by Sir George Cornewall Lewis,
has been set at rest, and the mists of an archaic prejudice have
been dispelled by a common-sense rule, which was at the same
time enlightened jurisprudence.

VIII

The Declaration and the Law of Nations.

It is generally assumed that the adherence of all nations to
such a document as the Declaration would modify international
law, and a short cut has been taken to the conclusion that such
a modification has, in fact, been effected. Two assumptions
are made to this end : first, that the United States is the only
non-adherent Power ; secondly, that the state of American
maritime law is such that the condition of adherence has been
satisfied. So many and such serious consequences follow, that
it is necessary to examine these assumptions carefully.

M. Drouyn de Lhuys wrote exultingly in his M6moire : —

A cette declaration ont accede toutes les puissances, ex-
cepte I'Espagne, le Mexique, et les Etats-Unis de I'Ameriqiie
du Nord. Les deux premieres ne firent des reserves que
sur le droit d'armer des corsaires, mais elles donn6rent leur

^ Lloyd's Prize Cases, ii. p. 70.

The Declaration and the Law of Nations 207

adhesion aux autres articles. Quant aux Etats-Unis, ils
auraient accepte la declaration tout enti^re si Ton eut
ajout6 une clause relative a I'inviolabilite de la propriety
privee sur mer.

Sauf ces restrictions, les arrangements conclus en 1854
entre I'Angleterre et la France sont tombes dans le domaine
public et places desormais sous I'autorite du droit des gens.

Count Walewski, reporting the adherences of the Powers
to the Emperor in 1856,^ put the consequence on aMower level.
He wrote that the principles of the Declaration " ainsi se trouve
consacre dans le droit international de la presque totahte des
Etats de I'Europe et de I'Amerique."

The late Sir Samuel Evans, in his judgment in the Marie
Glaser ^ (September 1914), said that the position at the outbreak
of the war was as follows : —

The Declaration has been adopted by practically all the
civilised States of the world except the United States of
America.

The United States refused to become a party to it, chiefly
on the broad ground that they desired a complete exemp-
tion from capture at sea of all private property other than
contraband. Nevertheless the United States announced at
the beginning of the Civil War that they would give effect
to its principles during those hostilities ; and again, in
1898, during their war with Spain, the President issued
a proclamation on April 26th, 1898,^ declaring that the
policy of the United States Government in the conduct of
the war would be to adhere to the rules of the Declaration
of Paris therein set forth, one of them being thus expressed :
" Neutral goods not contraband of war are not liable to
confiscation under the enemy's flag."

Spain also in the same year, while maintaining that she
was not bound by the Declaration, gave orders * for the
observation of the rules that (i) a neutral flag covers
the enemy goods, except contraband of war; and (ii)
neutral goods, except contraband of war, are not liable
to confiscation under the enemy's flag.

Spain and Mexico, which had for half a century refrained
from acceding to it, have recently formally acceded, the
former State on January 18th, 1908, and the latter on
February 13th, 1909.

Our own country, one of the original parties to it, has
steadfastly adhered to it.

The Court accordingly ought to, and will, regard the

1 Document No. 19. ' Lloyd's Prize Cases, i. p. 66.

» Dociiment No. 26 A. * Document No. 26 B.

208 The Declaration of Paris

Declaration of Paris, not only in the light of rules binding in
the conduct of war, but as a recognised and acknowledged
part of the Law of Nations, which alone is the law which
this Court has to administer.

I venture on criticism of recent decisions solely where it is
necessary to the elucidation of the discussion. The supreme
knowledge of maritime law comes only as a slow growth from
continued study and experience. When the war broke out no
one had studied it with that profoundness which its administra-
tion requires. There is hardly a principle of the books which
has not needed overhauling. We had all been brought up
under the influence of doctrines introduced in the middle of the
nineteenth century for the purpose of modifying the stringency
of maritime law as it had been understood by England ; of
introducing doctrines, pressed to their utmost limit in the
Declaration of London, which, when we were face to face with
the realities of a continental war, were found to sap the foun-
dations of effective belligerency. Above all, the Declaration of
Paris had passed into a kind of gospel ; but it was forgotten
that its principles had never been seriously examined. It was
taken as accomplished fact. The learned President's state-
ment, therefore, expresses an opinion which generally prevailed
during the first few months of war.

The war has been a great disturber of pre-judgments, and I
venture to discuss his statement ; for there is a wide difference
both in fact and intention between Sir Samuel Evans' opinion
and both M. Drouyn de Lhuys' and Count Walewski's views.
They do not rest on a common basis of principle.

Further, it is not quite clear what was the meaning of the
statement made on the eve of the American Civil War, that the
Law Officers had been instructed to advise " a-s to what are the
alterations which are to be made in the Law of Nations in
consequence of the Declaration of Paris." ^

Now as to the two traditional assumptions underlying the
Marie Gldser judgment.^ Neither of them is warranted. First,
as we have seen, there were, and are still, many non-adherent
States. Secondly, in the absence of adherence, will conformity
of law suffice ?

The Declaration expressly excluded adherence subject to
reservations. The reservation made by Spain, Mexico, and
Venezuela was as to the abolition of privateering ; that principle
was not removed from the Declaration ; the position of these
countries in 1868 was, therefore, the same as if they had re-

» See p. 153. « Lloyd's Prize Cases, i. p. 56.

The Declaration and the Law of Nations 209

fused to accept all the four indivisible principles. They were
non-adherent Powers.

Again, an offer to adhere subject to a condition cannot
become effective until the condition has been accepted by the
other Powers. The United States offered complete adherence
if the principle of the immunity of private property at sea were
added. That principle was not added. Therefore in 1868
the United States was a non-adherent Power, and is so now.
Further, the proposal actually made by the Government at
Washington to Great Britain and France during the Civil War
was that it should be by way of separate conventions.^ Lord
John Russell was willing to accept this for the purpose of
simplifying matters during the Civil War. Serious complica-
tions would have resulted if his offer had been accepted ; but
he attached a condition which was rejected, and the negotia-
tions came to an infructuous end.

Lastly, the acceptance of the principles, even of all four,
merely by legislation of a country, cannot be the adherence
required by the terms of the Declaration. For laws may be
altered, and the pledge which adherence implies would still be
wanting. A Power which " accepted " the principles in this way
would not be in the same position as the adherent Powers.

With regard to M. Drouyn de Lhuys' statement, we must
inquire what it was that had fallen " dans le domaine public." *
" Domaine public " is a French term for which " public law "
is the only, though not the precise, equivalent. He did not
say that the principles of the Declaration have passed into the
droit des gens, but " sont places desormais sous I'autorit^ du
droit des gens." He could not have intended to assert that
principles which these States had refused to accept had become
principles of the droit des gens in spite of them ; this would
have involved a contradiction in terms. The meaning probably
is no more than that the observance of the principles by the
adherent Powers had passed within the realm of international
law. This does not carry us very far, for the observance of
treaties is required by the Law of Nations.

Count Walewski's intimate relations with M. Drouyn de
Lhuys make it probable that he was accurately expressing his
view, that the principles had passed into the international law
of the several States which had accepted them by adhering to
the Declaration. By " international law " he must have meant
" maritime law " ; and his opinion, therefore, was that the

1 See p. 159.

' The reference to the " arrangement of 1854 " in the statement must
have been intended to refer to the principles adopted in 1856.

210 The Declaration of Paris

maritime law enforced by each State is such as its legislature
enacts it ; that uniformity in the maritime laws of all States
is desirable ; and that when this is achieved, we reach the
true droit des gens or international law.

With regard to Sir Samuel Evans' opinion, I venture to
think that the condition of interdependence attached to the
acceptance of the principles makes it impossible for the accept-
ance, even by all the non-adherent Powers, of one, or two, or
even three of them, to have converted them into principles of
international law.

But assuming the acceptance of the two principles — ^freedom
of enemy property on neutral ships, and freedom of neutral
property on enemy ships — by all nations to have satisfied the
condition of their recognition as principles of international law
— ^the non-adherent Powers by legislation ; the adherent Powers
by the fact of adherence — the Declaration of Paris would be
reduced to the subordinate position of evidence in respect of the
attitude of some of the Powers. This would altogether destroy
the effect which has been ascribed to it by tradition. And yet
if we give to the Declaration any larger warrant of authority, in
face of the fact that some Powers have not adhered, we should
be giving to a conventional agreement a wider scope than its
terms imply ; for rights and obligations enacted by a convention
rest on nothing but consent.

The fallacy that States which are not parties to conventions
can be compelled to observe them runs all through the history
of the subject ; the climax in fallacy being reached in the Due
de Bassano's report to Bonaparte in 1812, that the Treaty of
Utrecht — that is to say, two of the commercial treaties signed at
Utrecht in 1713 — had established " a common law " of nations :
" Les droits maritimes des neutres ont et^ regies solennelle-
ment par le traite d'Utrecht, devenu la loi commune des
nations." ^

I do not here discuss the wider proposition, that if all States
adhere to a convention its provisions are thereafter transmuted
into principles of the Law of Nations. It is sufficient to refer
once more to Lord Palmerston's despatch of the 13th April 1856,
to show that he never contemplated or assented to any radical
alteration of the Law of Nations : —

It would not be correct to say that a declaration of
principles such as is now contemplated could alter the
Law of Nations. That law rests upon foundations wider

* Rapport A VEmpereur NapoUon : Reponse par Phileleuthertcs :
Londres, 1812.

The Declaration and the Law of Nations 211

and deeper than the occasional declaration of a few States,
and it could not be altered except by some agreement
much more general and much more formal than the pro-
posed Declaration ; and it would be dangerous for Great
Britain to admit that such a Declaration issued by the
representatives of a small number of States could alter the
Law of Nations. An example thus set and a precedent
thus established, by the consent and participation of
Great Britain, might hereafter upon other occasions be
used for the purpose of establishing doctrines of inter-
national law to which Great Britain might have the
strongest possible objection and repugnance.

It is desirable not only that the Declaration should
be communicated to other States, but that the States to
which it shall be communicated be invited to accede to
it, and it is highly important to record that the principles
thus proclaimed shall not be applicable to the relations
of the declaring Powers with States which shall not have
acceded to the Declaration.

The general tenor of this despatch has already been con-
sidered. It was highly critical of the draft sent over from Paris
for approval of the Cabinet, and important alterations in the
proposed preamble were indicated as essential to England's
concurrence. These two paragraphs seem to be conceived in
the same critical spirit. Lord Clarendon had intimated
that, " If the whole Congress were to adopt the proposition
of Count Walewski, it should be well understood that it would
only be binding in regard to the Powers who may accede to it,
and that it could not be appealed to by Governments who may
refuse their accession."

Lord Palmerston thought that, having accepted the policy,
it should be made as far-reaching in its operation as possible,
and therefore proposed that States not represented at the Con-
gress should be invited to join. But he must not be taken to
have agreed that, even if all were to accept the invitation, the
" much more general and much more formal " agreement would
have been reached by which alone an alteration in the Law of
Nations would have been effected ; that the Declaration, even
with all the States in the world as adherents, would become
one of those wide and deep foundations on which the Law of
Nations rests.

The despatch is suggestive of the large question which the
Declaration had opened up ; it does not profess to solve it.

It may be agreed that a multilateral convention to which
all nations have adhered is more efficacious to bind than a series
of independent conventions entered into between them all, two

212 The Declaration of Paris

and two ; but the assumption that its principles thereby pass
into the Law of Nations, even if it rested on a sounder basis
than it does, is not a practical proposition.

But, these questions apart, we are faced with two difficulties.
First, if adherence to a convention by all States does make its
principles part of international law, it would shut out all pro-
gress in the rules of maritime law ; for no alteration, however
beneficial and obviously necessary, could be introduced except
by way of another general convention ; and, in the premises,
the refusal of one State to adhere would prevent its adoption.
Secondly, and more important, either a State can never withdraw
its assent to such a convention, or, if it may and does, the rule
must thereupon drop out of the code. The suggestion lends
itself to endless discussion, which would not be very profitable.
But one remark may be made. Debates on war principles in
peace-time, in spite of Lord Clarendon's view ^ that only then
can reason dictate the right way to wage war, can never be very
satisfactory. The possibilities of war seem then so remote, so
unreal, that the conditions inevitably are more favourable to
the latent ulterior motive which plausible diplomatic phrases
skilfully employed hide from the wit of even clever pleni-
potentiaries. But this is conceivable : that theoretical principles
might be adopted which, put into war practice, might mean
irretrievable disaster to some consenting Power. Does the
doctrine that contracts are eternal and indefeasible, except by
consent of all parties, hold then ?

In conclusion, I pass from the region of theory and con-
jecture to the very practical solution of all difficulties which is
suggested by Sir Samuel Evans' later decision in the Schooner
MoweJ^

The result of that decision has been already dealt with. Its
indirect consequences are, I think, wider than at first sight
appear. An enemy subject may now claim the benefit of one of
the principles of the Declaration, and argue his case before the
Court, if his Government is an adherent Power, in the same way
as the subject of an adherent neutral Power. A multilateral
treaty differs in no respect from a simple treaty — the subjects
of the Parties come within the application of the new rule of
practice in both cases. But the subjects of a non-adherent
Power could not claim the benefit of the rule.

This decision seems to me, with great respect, to do away
with the necessity of an inquiry whether the Declaration has

1 See p. 127. 2 Lloyd's Prize Cases, ii. p. 70, see p. 206.

The Declaration and the Law of Nations 213

become part of the Law of Nations ; for whether nineteen
nations, or all nations, have adhered, in order to entitle the sub-
ject of an adherent Power to raise a direct issue under it, it is
to the Declaration he must appeal. The position of such a
claimant is not strengthened by the assertion that the Declara-
tion has become part of the Law of Nations, and the position
of subjects of a non-adherent Power is not altered.

CONCLUSION

Many strange things conspired to the evolution of the Declara-
tion of Paris, and it will be well, in conclusion, to gather
together the threads of the story.

Having accepted the condition which the Scandinavian Powers
attached to their neutrality, that their free ships should make
enemy goods free, Lord Clarendon almost immediately informed
British merchants that the old law of war against trading with
the enemy would be enforced, and that their consignments
from the enemy would not be free on neutral ships.

Being engaged with France as ally in a naval war, Lord
Clarendon recognised that the action of the fleets must rest
on identity of principle, and both Governments endeavoured
to bring this about.

While the negotiations were being dragged out to the last
minute before war was declared, and the patience of France
was sorely tried. Lord Clarendon submitted the draft Declara-
tion as a British project to the United States Minister in London,
and was seeking his approval. Finality was promised at a
time when nothing was further off than a final decision ; and
even then it was finality in the English Cabinet, not in the
Allied councils.

France was not informed of the part which the United States
Government was asked to play in the discussion, still less did
she know that the differences of opinion in the Cabinet had
disappeared under the pressure of the Minister's opinion.

Throughout these parallel discussions the " Rule of 1756 "
dances like a firefly. It is here, it is gone, it reappears ; on
the morning of the last day it is insisted on, to the im-
minent wrecking of the joint declaration ; by the evening it is
withdrawn, but not abandoned.

Faced with serious criticism in Parliament by those who
feared that the policy adopted for this war might become a
perpetual principle to be adopted in all wars, the Government
spokesmen allayed those fears by what was tantamount to a
pledge for the future — " To waive is not to surrender."

214

Conclusion 215

Behind this was the fixed intention of Lord Clarendon,
confided to Lord Shaftesbury, to alter the ancient law, to
abandon the ancient practice, permanently : and the con-
fession to M. Drouyn de Lhuys that he dared not do it openly,
in the face of the people.

Between the Government and the people there was built up
a screen of false conclusions drawn from half-true statements ;
of theories as to how war ought to be waged ; of political
economists' predictions of what would happen if only those
theories were adopted — by whom these doctrines were asserted :
that trading with the enemy must be permitted ; that the
maxim " free ships free goods " sanctions it ; that ships and
cargoes upon the sea are not part of the national commerce,
but private property, which should be immune from capture ;
that the Bonaparte theories were sound, and that we owed an
apology to the world at large for having resisted and defeated
them.

To the demonstration of these doctrines a year of theoretical
talk was devoted, and the most glaring act of unneutral service
that could well be devised, short of actual military assistance
to the enemy, the scheme of Prussian land-transit to Memel,
was but feebly protested against.

And afterwards the Declaration of Paris was hung " round
our necks " : and no better justification forthcoming than
this : " And now, my Lords, let me ask, having once waived
these rights, was it possible, or was it prudent, for us to return
to them ? "

So the full circle was complete : to waive was to surrender,
as had always been intended. Thus Lord Clarendon achieved
his purpose, and England, through his agency, did what the
neutrals had in vain demanded for a hundred years, under more
strenuous Ministers, that she should do.

Yet so little importance did Lordf Clarendon attach to the
Declaration, that when, a few months later. Parliament was
prorogued, no mention was made of it in the Queen's speech.

But of the many strange things, none more strange than Lord
Palmerston's varying moods. It is difficult to believe that the
author of the despatch to Lord Clarendon on the eve of his
signing the Declaration can have made the speeches he did :
either in the autumn of 1856 to the electors of Liverpool, or in
the House of Commons in 1862 embodying his " second thoughts."
These speeches show one thing clearly, that the question is
too intricate to be dealt with in the political manner. Theory
cannot replace practical experience. The question to be solved
is whether, if neutrals are allowed to carry enemy goods free.

216 The Declaration of Paris

and " private property " is immune upon the sea, England can
successfully wage war ? Only the experts in naval and military
matters can answer that question. But the civilian may
assist by his researches into historical records. And history
reveals three distinct policies hostile to England.

First, that of the enemy, who shapes his policy according to
his needs for carrying on the war. Without " free ships free
goods " France could not have got the assistance which the
neutral gave her for building and repairing ships, and would not
have been able to carry on the war in aid of the Americans.

When the alliance with the Colonists was completed and,
after long secret preparation, war had been declared, M. de
Sartine, French Secretary of State for the Marine, being informed
that England was seizing cargoes of ships timber and naval
stores on Dutch ships, wrote fort emu to M. de Vergennes :
" Si les Anglais prennent les neutres, nos appro visionnements
pour Tannic prochaine seront interceptes ; vous jugez du mal
que cela nous fera." ^

Dr Fauchille's book on the Armed Neutrality of 1780
contains frequent allusions to this need of France if she was
to carry on the war. In one pregnant passage he says : " C'^tait
pour la France I'unique moyen d'assurer I'approvisionnement
de ses ports et I'entretien de sa marine, conditions indispensables
au soutien d'une guerre navale contre I'Angleterre. La France
ne trouvait pas en elle-meme les materiaux essentiels pour la
navigation . . . seule, elle n'aurait pu importer toutes les choses
necessaires. ... II fallait done recourir a I'^tranger." ^

Secondly, that of the neutral merchant, whose trade in his
staple commodities, ships timber and naval stores, would be
carried on without risk of seizure if only " free ships free goods "
could be insisted on.

Mr Wroughton, British Minister at Stockholm, wrote in
February 1780 : "I am constantly assured that we give too
great an extent to the appellation of naval stores, which, being
the natural and sole production of this country, such an im-
pediment to their exportation cannot fail of being a great
detriment to its trade and revenues." ^

And Mr Morton Eden, British Minister at Copenhagen,
reported about the same time a conversation with Count Berns-
torif, with reference to the victualling trade, especially in salted
provisions : " It was a point they [the Danes] never could give
up, nor would ; it was nearly the only production of the country,

* De Sartine to de Vergennes, 22nd August 1778 (Fauchille, La Ligue
dea Neutres, p. 4).

» Fauchille, ibid, p. 16. » F.O., 73, Sweden.

Conclusion 217

and the loss of this branch of commerce must be highly detri-
mental. Some of the Royal Family engaged in the trade." ^

Thirdly, that of the neutral shipowner, the profits of whose
carrying trade would be magnified past reckoning if " free ships
free goods " were admitted as a universal rule.

Mallet du Pan records the answer to the Prince of Orange
of a Dutch shipper who carried munitions to the Spaniard : " S'il
y avait un commerce lucratif avec I'enfer, je me hasardais d'y
bruler mes voiles." 2

There is little difference in principle between this confession
and the statement in the speech from the Dutch throne in
September 1855 : " Bien que la guerre n'ait pas ete sans exercer
une influence assez sensible sur le commerce et la navigation,
ces deux branches d'industrie nationale se trouvent neanmoins
dans une situation satisfaisante." '

The principle is to secure the profit from the commerce which
is incident to war.

So it was always three to one : the interests of the three
coinciding to reduce England's power of seizing enemy property
to its lowest limits : supporting their claim by assertions that
it found its warrant in the Law of Nations.

When it is said that in the past England was not afraid to
stand alone, the meaning is, that she was undeterred by this
combination, and fought at sea according to the principle which
she believed to be the foundation of the law of war : to prevent
neutral assistance from reaching the enemy. In spite of the
bluster of Armed Neutralities she held her own.

The fear of offending the United States, working on the latent
inclination to adopt humanitarian theories of war, produced the
change in English maritime law which was finally embodied in
the Declaration of Paris. Mr Marcy prevailed where Catherine
had failed.

But neither fear of offending the neutrals, nor reckless dis-
regard of them, is the principle on which wars can be fought
and won. Each by its own way will lead to disaster : fear of
offence paralyses the striking force of the country ; reckless
disregard destroys the commercial action and reaction on which
our own relations with the neutrals depend. The path of safety
lies between ; and it is the way which, as I believe, the Law of
Nations sanctions.

The old question. What is the Law of Nations ?, is once more
to be discussed ; on the answer will depend the solution of all

^ F.O., 22, Denmark. ^ Annales pdlitiqtiea, t. i. p. 226.

^ State Papers, vol. xlvi. p. 1040.

218 The Declaration of Paris

the disputes between belligerent and neutral merchant. It is
to be found in Lord Palmerston's despatch to Lord Clarendon.

He modified certain statements in the preamble proposed
to the Declaration which prejudiced the verdict of history on
Britain's action in past wars, and he definitely established the
meaning of the term which had been so greatly misused — ^the
" Law of Nations." I know of no statement which so concisely
renders all Lord Stowell's teaching — that that Law does not rest
on principles which Congresses have endeavoured to formulate,
but on wide and deep foundations, the search for which has
for so long been abandoned. The despatch has lain hidden
for many years. It will, I think, serve as an all-sufficient
and inspiring guide in the momentous discussions which are
now imminent.

PART III

T>OCUMENTS

CHRONOLOGICAL TABLE OF CHIEF HISTORICAL EVENTS
CONNECTED WITH THE RUSSIAN WAR, 1854-1856.

Manifesto of the Porte setting forth reasons for the declara-
tion of war against Russia. {N.R.O.,^ xv. p. 547.)

Manifesto of the Emperor of Russia against the declaration
of war by the Porte. {N.R.O., xv. p. 551.)

Conference at Vienna between Austria, Great Britain, France,
and Prussia to smooth away the differences between
Rvissia and the Porte. {N.R.G., xv. p. 533.)

Protocol : — Consideration of the Tvirkish answer. {N.B.G.,
XV. p. 535.)

Protocol : — Consideration of the Russian propositions.
{N.R.O., XV. p. 538.)

Russian manifesto suspending diplomatic relations with
Great Britain and France. {State Papers, xlvi. p. 363.)

Protocol : — Consideration of preliminaries of proposed Treaty
between Riissia and the Porte. (N.R.G., xv. p. 540.)

Treaty of Alliance between Great Britain, France, and the
Porte. {N.R.G., xv. p. 565.)

Russia crosses the Danube and invades Turkey.

Declaration of causes of war by Great Britain. {N.R.G.,
XV. p. 552.)

Protocol :■ — Russia having left vtnanswered the invitation of
the Conference to evacuate the PrincipaHties, it was de-
cided that " L'6tat de guerre d6ja declar^e entre la Russia
et la Sublime Porte existe 6galement de fait entre la
Russie d'une part, et la France et la Grande Bretagne
de I'autre." {N.R.G., xv. p. 543.)

Convention between Great Britain and France to determine
the object of their alliance and the means to be employed
in common. {N.R.G., xv. p. 568.)

Treaty of offensive and defensive alliance between Austria
and Prussia. {N.R.G., xv. p. 572. German text. State
Papers, xliv. p. 84.)

Additional article, 26th November, with accession of Germanic
Confederation, 9th December 1854.

Treaty, Austria and Prussia, 20th April 1854 : —
i. Mutual guarantee of each other's territory,
ii. Mutual assistance in case of aggression,
iii. Military assistance to be ready in case of need. •
iv. Invitation to all Governments of the Germanic Con-
federation to accede.
v. Neither party to conclude a separate alliance detri-
mental to this alliance,
vi. Ratifications to be exchanged without delay.

Additional article. Austria and Prussia regard the occupation
of the Lower Danube by Russia as dangerous, but under-
stand that her troops will be withdrawn in consequence of
concessions now granted to Christian subjects by the Porte.

Single article. Austria to request Russia to stop her in-
vasion of Turkish territory, and guarantee evacuation of
Danubian Principalities. Pmissia to support this. In the
event of Russia's refusal, art. ii. of the Treaty to be put
in force.
llth-23rd April lS54i Russian manifesto relating to the war. {State Papers, xlvi.
p. 382.)

ith October 1853
1st November 1853
5th December 1853

13th January 1854

2nd Febrvxxry 1864

9th Febriiary 1854

5th March 1854

12th March 1854

21st March 1854
2Sth March 1854

9th April 1854

10th April 1864
20th April 1854

De Martens, Nouveau Recueil Gineral

222

The Declaration of Paris

23rd May 1864
14^ June 1854
24<^ Jtdy 1854
Sih August 1854

September 1854
2Qth September 1854
nth October 1854 .
25<^ October 1854 .
bih November 1854 .
2ndDecem66r 1854 .

2%th December 1854 .

January 1855
26thJamiary 1855

17«A^e6rMart/1856

4<A ikfarcJi 1855
16f^ March 1855

15ffc ikforcA 1855

Sth September 1S55 ,
21si^ot;ew6er 1855

27<;i J/ovemfter 1855.
25th February -Qth
April 1856

30«^ March 1856

28<^ viprtZ 1856

Protocol ;-.-Comm\inication of Convention concluded on the
20th April between France and England on one side and
Austria and Prussia on the other. {N.R.G., xv. p. 544.)

MiUtary Convention between Austria and the Porte, Austria
agreeing to take all necessary steps to secure the evalua-
tion of the PrincipaUties. {N.R.O., xv. p. 594.)

Decree of the Diet of the Germaxi Confederation adhering to
Treaty of Alhance between Austria and Prussia of 20th
April 1854. (N.B.G., xv. p. 679.)

Notes exchanged at Vienna between Atistria, France, and
Great Britain, fixing the basis for the establishment of a
Peace between Russia and the Porte. {N.B.O., xv. p. 644. )

The aUied armies land in the Crimea.

Battle of the Alma.

The Siege of Sebastopol begins.

Battle of Balaclava.

Battle of Inkerman.

Treaty of Alhance between Great Britain, France, and
Austria. {N.R.G., xv. p. 600.)

Memorandtunby Great Britain, France, and Aiistria to Russia.

In order to prevent the revival of recent compUcations,
Great Britain, France, and Austria declare that—
i. No former Treaties between Turkeyand Russia concern-
ing Moldavia, Walachia, and Serbia are to be revived,
ii. Free navigation of the Danube. A syndicate to have

power to clear away the obstacles at the estuaries.
iii. Revision of Treaty of 13th July 1841, to re-establish

the existence of the Ottoman Empire,
iv. Russia to renoimce ofi&cial protection of the Sultan's
Christian subjects, and not to revive the Treaty of
Koutchouk Kainardj i,the misinterpretation of which
was the cause of the war. {N.B.O., xv. p. 632.)

Lord Aberdeen resigns.

Lord Palmerston becomes Prime Minister.

Supplementary Convention between Great Britain and
France accepting the accession of Sardinia to the Conven-
tion of 10th AprU 1854. {N.B.O., xv. p. 606.)

Circular of Cotmt Nessehode to Russian Ministers in neutral
countries in regard to Sardinia's joining in the war
{N.B.G., XV. p. 555.)

Manifesto by Sardinia justifying her declaration of war
against Russia. {N.B.G., xv. p. 657.)

Protocols of second Conference at Vienna between Great
Britain, France, Austria, Tiirkey, and Russia. {N.B.G.,
XV. p. 633.)

Convention between Sardinia and the Porte, Sardinia ad-
hering to the Alhance of Great Britain and France with
the Porte of 12th March 1854. (N.B.G., xv. p. 623.)

Fall and evacuation of Sebastopol.

Treaty between Great Britam, France, and Sweden guaran-
teeing territorial integrity of Sweden against Russia.
{N.B.G., XV. p. 628.)

Capitxolation of Kars.

Congress of Paris between Great Britain, France, Sardinia,
Tvu-key, Austria, Prussia, and Russia to determine condi-
tions of Peace. {State Papers, xlvi. p. 63. N.B.G., xv.
p. 700.)

Signature of Treaty of Peace at Paris. {State Papera, xlvi.
p. 8. N.B.G., XV. p. 770.)

Signature of Declaration of Paris.

Queen's Proclfunation of Peace. {State Papers, xlvi. p. 62.)

Declarations of Neutrality, January 1854.

A.— SWEDEN TO THE BELLIGERENTS.

BARON REHAUSEN TO THE EARL OF CLARENDON.

Londres, le 2 Janvier^ 1854.

Les complications politiques du moment, k la suite de la
declaration de guerre de la Porte Ottomane, et I'eventualitd
possible d'une guerre maritime, ont impost au Gouvernement
de Sa Majeste le Roi de Su^de et de Norv^ge I'obligation de
vouer une attention serieuse aux effets qui pourraient en resulter.
Son desir sincere est de conserver intactes les relations de bonne
amitie et de parfaite intelligence qui r^gnent si heureusement
entre les Royaumes Unis et tous les Gouvernements de I'Europe.
N'ayant rien de plus a cceur que de maintenir et de cimenter
ces relations, Sa Majesty le Roi de Su^de et de Norvege regarde
comme un devoir de ne point laissez ignorer aux Puissances
amies et alliees la marche politique que, pour y parvenir, elle
se propose de suivre dans I'eventualite ci-dessus mentionn^e.

Guidee autant par la franche amitie qui regne entre les
Souverains et les peuples des Royaumes Unis et du Danemarc,
que par cette communaut6 d'interets et de principes politiques
qui se soutient et se renforce reciproquement, Sa Majest^ le
Roi de Suede et de Norvege s'est vue appelee, en premier lieu,
k se concerter avec son auguste ami, voisin et allie, Sa Majesty
le Roi de Danemarc, sur les mesures a adopter eventuellement,
afin d'etablir une action commune, propre a faciliter par son
identite I'application du syst^me convenu. Ces ouvertures
ayant trouv^ I'accueil favorable, auquel on etait en droit de
s'attendre, c'est en conformite des resolutions arretees par les
2 Souverains, que le Soussigne, Envoys Extraordinaire et
Ministre Plenipotentiaire de Sa Majeste le Roi de Suede et de
Norvege pr^s Sa Majeste la Reine de la Grande Bretagne et

223

224 The Declaration of Paris

d'Irlande, a re9u I'ordre de son auguste Souverain de porter k
la connaissance du Minist^re de Sa Majeste Britannique les
regies generales que Sa Majesty le Roi de 5u^de et de Norvege
a cru devoir etablir, afin de fixer la position de ses Etats pour
le cas deplorable que des hostilites entre les Puissances amies
et alliees du Roi vinssent a eclater.

Le systemeque Sa Majeste le Roi de Suede et Norvege
entend suivre et appliquer invariablement est celui d'une stricte
neutralite, fondee sur la loyaute, I'impartialit^ et un egal respect
pour les droits de toutes les Puissances. Cette neutralite, selon
les vues uniformes des 2 Cours, imposerait au Gouvernement
de Sa Majesty le Roi de Suede et de Norvege les obligations et
lui assurerait les avantages suivants :

1. De s'abstenir, pendant la lutte qui pourrait s'engager, de
toute participation, directe ou indirecte, en faveur d'une des
Parties Contendantes au detriment de I'autre ;

2. D'admettre dans les ports de Suede et de Norvege les
batiments de guerre et de commerce des parties belligerantes ;
le Gouvernement se reservant toutefois la faculte d'interdire aux
premiers I'entr^e des ports de guerre suivants, savoir : celui de
Stockholm, en de9a de la forteresse de Waxholm ; de Christiania,
en de9a du fort de Kaholm ; le bassin interieur de la station
militaire Norvegienne a Horten ; les ports de Carlsten et de
Carlskrona, en dega des fortifications ; et le port de Slito, dans
rile de Gottland, en de9a des batteries elevees a Encholm.

Les reglements sanitaires et de police que les circonstances
auraient rendu ou pourraient rendre necessaires, devront
naturellement etre observ^g et respectes. Les corsaires ne
seront pas admis dans les ports, ni toleres sur les rades des
Etats de Sa Majeste le Roi de Suede et de Norvege ;

3. D'accorder aux batiments des Puissances belligerantes la
faculte de se pourvoir dans les ports des Royaumes Unis de
toutes les denrees et marchandises, dont ils pourraient avoir
besoin, a I'exception des articles reputes contrebande de guerre ;

4. D'exclure des ports de Suede et de Norvege I'entr^e — les
cas de detresse constat6e except^s — la condamnation et la vente
de toute prise ; et enfin,

5. De jouir, dans les relations commerciales des Royaumes
Unis avec les pays en guerre, de toute surete et de toutes les
facilites pour les navires Suedois et Norvegiens, ainsi que pour
leurs cargaisons, avec I'obligation toutefois pour ces navires
de se conformer aux regies generalement etablies et reconnues
pour les cas speciaux de blocus declares et effectifs.

Tels sont les principes g^neraux de la neutrality adoptee par
Sa Majeste le Roi de Su^de et de Norvege pour le cas qu'une

Declarations of Neutrality 225

guerre en Europe viendrait k eclater. Le Roi se flatte qu'ils
seront reconnus conformes aux droits des gens, et que leur loyale
et fidele observation mettra Sa Majeste en 6ta.t de cultiver avec
les Puissances amies et alliees ces relations que, pour le bien de ses
peuples, il lui tient a coeur de preserver et toute interruption.

En priant Lord Clarendon de vouloir bien porter la pr^sente
communication a la connaissance du Gouvernement de Sa
Majesty Britannique, le Soussigne, &c.

The Earl of Clarendon. Rehausen.

THE EARL OF CLARENDON TO THE HON. W. GREY.

Foreign Office, January 20, 1854.
Sir,

I have to inform you that the note which has been delivered
to me by Baron Rehausen, containing the declaration of neu-
trality on the part of Sweden and Norway in the event of
war, has received the best attention of Her Majesty's Govern-
ment ; and I am glad to express the satisfaction with which
they have learned the neutral policy which it is the intention
of the Swedish and Norwegian Government to pursue, and
the measures adopted for giving effect to that policy.

Her Majesty's Government do not doubt that if war should
unfortunately occur, the engagements now taken by the Swedish
and Norwegian Government will be strictly and honourably
fulfilled, and Her Majesty's Government will lend their best
endeavours in support of the neutral position that Sweden and
Norway propose to maintain. — I am, &c.

The Hon. W. Grey. Clarendon.

B.— DENMARK TO THE BELLIGERENTS.

COUNT REVENTLOW CRIMINIL TO THE EARL OF
CLARENDON.

Legation de Danemarc, le 2 Janvier, 1854.

Les complications politiques du moment, a la suite de la
declaration de guerre de la Porte Ottomane, et I'eventualite
possible d'une guerre maritime, ont impose au Gouvernement de
Sa Majeste le Roi de Danemarc I'obligation de vouer une atten-
tion serieuse aux effets qui pourraient en resulter. Son desir
sincere est de conserver intactes les relations de bonne amitie
et de parfaite intelligence qui r^gnent si heureusement entre

226 The Declaration of Paris

le Danemarc et tous les Gouvernements de I'Europe, N'ayant
rien de plus a coeur que de maintenir et de cimenter ces relations,
Sa Majesty le Roi de Danemarc regarde comme un devoir de
ne pas laisser ignorer aux Puissances alli^es et amies la marche
politique que, pour y parvenir, elle se propose de suivre dans
I'eventualit^ ci-dessus mentionn^e.

Guidee autant par la franche amiti6 qui r^gne entre les
Souverains et les peuples du Danemarc et des Royaumes Unis
de Su^de et de Norv^ge, que par cette communaute d'interets
et de principes politiques qui se soutient et se renforce recipro-
quement, Sa Majesty le Roi de Danemarc s'est vue appelee, en
premier lieu, a se concerter avec son auguste ami, voisin et allie,
Sa Majesty le Roi de Suede et de Norv^ge, sur les mesures a
adopter eventuellement, afin d'etablir une action commune,
propre a faciliter, par son identite, I'application du systeme con-
venu. Ces ouvertures ayant trouve I'accueil favorable, auquel on
etait en droit de s'attendre, c'est en conformite des resolutions
arret^es par les 2 Souverains, que le Soussign^, Charge d'Affaires
de Sa Majeste le Roi de Danemarc pres Sa Majeste la Reine
de la Grande Bretagne et de I'lrlande, a refu I'ordre de son
auguste Souverain de porter a la connaissance du Ministere de
Sa Majeste Britannique les regies generales que Sa Majeste le
Roi de Danemarc a cru devoir etablir, afin de fixer la position
de ses Etats, pour le cas deplorable que des hostilites entre des
Puissances amies et alliees du Roi vinssent a ^clater.

Le systeme que Sa Majeste le Roi de Danemarc entend suivre
et appliquer invariablement, est celui d'une stricte neutralite,
fondee sur la loyaute, I'impartialite et un egal respect pour les
droits de toutes les Puissances. Cette neutralite, selon les vues
uniformes des 2 Cours, imposerait au Gouvernement de Sa
Majeste le Roi de Danemarc les obligations et lui assurerait les
avantages suivants :

1. De s'abstenir, pendant la lutte qui pourrait s'engager,
de toute participation, directe ou indirecte, en faveur d'une des
parties contendantes au detriment de I'autre ;

2. D'admettre dans les ports de la Monarchic les batiments de
guerre et de commerce des parties belligerantes, le Gouvernement
se reservant toutefois la faculte d'interdire aux premiers, ainsi
qu'aux navires de transport appartenant aux flottes respectives
des Puissances belligerantes, I'entree du port de Christianso.

Les reglements sanitaires et de police que les circonstances
auraient rendu ou pourraient rendre n^cessaires, devront
naturellement etre observes et respectes. Les corsaires ne
seront pas admis dans les ports, ni toleres sur les rades des
Etats de Sa Majeste Danoise ;

Declarations of Neutrality 227

3. D'accorder aux batiments des Puissances bellig^rantes la
faculty de se pourvoir, dans les ports de la Monarchic, de toutes
les denrees et marchandises dont ils pourraient avoir besoin, k
I'exception des articles reputes contrebande de guerre ;

4. D'exclure des ports de la Monarchic I'entr^e — les cas de
detresse constates except6s — ^la condamnation et la vente de
toute prise ; et enfin,

5. De jouir, dans les relations commerciales des Etats de Sa
Majeste Danoise avec les pays en guerre, de toute surety et de
toutes facilites pour les navires Danois, ainsi que pour leurs
cargaisons, avec obligation toutefois pour ces navires de se
conformer aux regies generalement etablies et reconnues pour
les cas speciaux de blocus declares et effectifs.

Tels sont les principes generaux de la neutralite adoptee par
Sa Majeste le Roi de Danemarc pour le cas qu'une guerre en
Europe vint a ^clater. Le Roi se flatte qu'ils seront reconnus
conformes au droit des gens, et que leur loyale et fiddle observa-
tion mettra Sa Majeste en etat de cultiver avec les Puissances
amies et alliees ces relations que, pour le bien de ses peuples,
il lui tient tant a coeur de preserver de toute interruption.

En priant son Excellence le Comte de Clarendon de vouloir
bien porter la presente communication a la connaissance du
Gouvernement de Sa Majeste Britannique, le Soussign^, &c.

Le Comte de Clarendon. A. Reventlow Criminil.

THE EARL OF CLARENDON TO MR BUCHANAN.

Foreign Office, January 20, 1854.
Sir,

I have to inform you that the note which has been delivered
to me by Count Reventlow Criminil, containing the declaration
of neutrality on the part of Denmark in the event of war, has
received the best attention of Her Majesty's Government ; and
I am glad to express the satisfaction with which they have
learned the neutral policy which it is the intention of the Danish
Government to pursue, and the measures adopted for giving
effect to that policy.

Her Majesty's Government do not doubt that if war should
unfortunately occur, the engagements now taken by the Danish
Government will be strictly and honourably fulfilled, and Her
Majesty's Government will lend their best endeavours in
support of the neutral position that Denmark proposes to
maintain. — I am, &c.

A. Buchanan, Esq. Clarendon.

228 The Declaration of Paris

C— DENMARK TO THE UNITED STATES.

THE DANISH CHARGE D'AFFAIRES AT WASHINGTON TO
THE UNITED STATES SECRETARY OF STATE.

Washington^ January 20, 1854.

The present poHtical comphcations consequent upon the
declaration of war by the Ottoman Porte, and the possible
contingency of a maritime war, have imposed upon the Govern-
ment of His Majesty the King of Denmark the obligation of
giving an earnest attention to the effects which may be the
result. Its sincere desire is to preserve intact the relations of
friendship and good understanding which so happily reign
between Denmark and all the Governments of Europe. Having
nothing more at heart than to maintain and cement those
relations, His Majesty the King of Denmark regards it as a
duty not to leave the allied and friendly Powers in ignorance
of the line of policy which, for the attainment of said object,
he proposes to follow in case of the above-mentioned event.

Guided as much by the frank friendship which reigns between
the Sovereigns and people of Denmark and of the United King-
doms of Sweden and Norway, as by that community of interests
and political principles which reciprocally sustains and reinforces
each other. His Majesty the King of Denmark has found him-
self called, in the first place, to concert himself with his august
friend, neighbour, and ally, the King of Sweden and Norway,
on the measures eventually to be adopted in order to establish
a common action proper to facilitate, by its identity, the appli-
cation of the system agreed upon. These overtures having met
with that favourable reception one had a right to expect, it is
in conformity with the resolutions taken by the two Sovereigns
that the Undersigned, Charge d' Affaires of His Majesty the King
of Denmark, near the Government of the United States of
America, has received the order of his august Sovereign to
bring to the knowledge of the Government of the United States
the general rules which His Majesty the King of Denmark
has deemed it proper to establish in order to fix the position
of his States in the deplorable event of hostilities breaking out
between the friendly and allied Powers of the King.

[The remainder of the Note was substantially the same as
the Danish Declaration to the Belligerents, No. 1, B.]

Declarations of Neutrality 229

D.— SWEDISH DECLARATION TO THE UNITED

STATES.

THE SWEDISH CHARGfi D'AFFAIRES AT WASHINGTON TO
THE UNITED STATES SECRETARY OF STATE

Washington, January 28, 1854.

The present political complications consequent upon the
declaration of war by the Ottoman Porte, and the possible
contingency of a maritime war, have imposed on the Govern-
ment of His Majesty the King of Sweden and Norway the
obligation of giving an earnest attention to the effects which
may be their result. Its sincere desire is to preserve intact
the relations of friendship and good understanding which so
happily reign between Sweden and Norway and all the Govern-
ments of Europe. Having nothing more at heart than to
maintain and cement those relations, His Majesty the King of
Sweden and Norway regards it as a duty not to leave the allied
and friendly Powers in ignorance of the line of policy which,
for the attainment of the said object, he proposes to follow in
case of the above-mentioned event.

Guided as much by the frank friendship which reigns be-
tween the Sovereigns and people of Sweden and Norway and
of the Kingdom of Denmark, as by that community of interests
and political principles which reciprocally sustain and reinforce
each other, His Majesty the King of Sweden and Norway has
found himself called, in the first place, to concert himself with
his august friend, neighbour, and ally, the King of Denmark,
on the measures eventually to be adopted in order to establish
a common action proper to facilitate, by its identity, the
application of the system agreed upon. These overtures having
met with that favourable reception one had a right to expect,
it is in conformity with the resolutions taken by the two
Sovereigns, that the Undersigned, Charge d' Affaires of His
Majesty the King of Sweden and Norway, near the Government
of the United States of America, has received the order of his
august Sovereign to bring to the knowledge of the Government
of the United States the general rules which His Majesty the
King of Sweden and Norway has deemed it proper to establish
in order to fix the position of his States in the deplorable event
of hostilities breaking out between the friendly and allied Powers
of the King.

[The remainder of the Note was substantially the same as
the Swedish Declaration to the Belligerents, No. 1, A.]

280 The Declaration of Paris

E.— REPLY OF THE UNITED STATES TO
DENMARK AND SWEDEN.

THE UNITED STATES SECRETARY OF STATE TO THE
DANISH CHARGlfi D'AFFAIRES AT WASHINGTON.

Washington, February 14, 1854.

The Undersigned, Secretary of State of the United States,
has the honour to acknowledge the receipt of the Note which
the Charge d' Affaires of His Majesty the King of Denmark
addressed to this Department on the 28th ulto., bringing to the
knowledge of this Government the general rules which it has
been deemed proper by His Majesty the King of Denmark, in
concert with His Majesty the King of Sweden and Norway, to
establish, in order to fix and define the position of Denmark
in the event of hostilities breaking out among the Powers of
Europe, in consequence of the existing relations between Russia
and the Ottoman Porte.

The Undersigned has the honour to inform Mr Torben Bille
that, at his request, the views of his Government have been
submitted to the President, and that they are regarded by him
with all the interest which the occasion demands. Mr Bille
may rest assured that the Government and people of this
country feel deep solicitude in the events now transpiring in
Europe, not only on account of the general anxiety they occasion
to those Powers more nearly exposed to the menaced evils,
but also as having a most important ulterior bearing upon the
United States.

The Undersigned, etc.

T. Bille, Esq. W. L. Marcy.

[The reply to the Swedish Charg6 d' Affaires was in identical
terms.]

The Riga Despatch, 16th February 1854.

The Earl of Clarendon has had under his consideration your
despatch requesting to be informed what respect would be paid
by British cruisers, in the event of war, to bona-fide British
property, the produce of Russia, if shipped on board neutral
vessels. T am to acquaint you in reply that property of the

Riga Despatch 231

description in question, the produce of Russia, and exported
therefrom, by and on account of a British merchant domiciled
and trading there, although purchased before the war, and ex-
ported to England, would not be respected by Her Majesty's
cruisers unless in pursuance of a licence, or of some special
instructions from Her Majesty to the officers of the navy. By
the law and practice of nations a belligerent has a right to con-
sider as enemies all persons who reside in a hostile country, or
who maintain commercial establishments therein, whether such
persons be by birth neutrals, allies, enemies, or fellow-subjects ;
the property of such persons exported from such country is,
therefore, res hostium, and, as such, lawful prize of war. Such
property will be condemned as prize, although its owner may be
a native-born subject of the captor's country, and although it
may be in transitu to that country and its being laden on board
a neutral ship will not protect the property. You will, there-
fore, inform those whom it may concern that in the event of
war the property in question will not be protected by the con-
sular certificate, or by any other document, but will be liable to
capture and condemnation as prize.

To the British Consul at Riga,
February 16, 1854.

Instructions of the British and French Governments for
the Mutual Protection of Subjects and Commerce,
February 1854.

e. (l) circular to british diplomatic and

CONSULAR AGENTS.

^^ Foreign Office, February 23, 1854.

The communication which has recently been made to you
of the correspondence on Eastern affairs which has been laid
before both Houses of Parliament, will have shown you that
there is every probability of an early commencement of hos-
tilities between Great Britain and France on one side, and
Russia on the other. That correspondence will also have
shown you that the British and French Governments, through-
out the difficult and complicated negotiations which have pre-

232 The Declaration of Paris

ceded the existing state of affairs, have earnestly and cordially
acted together, with a view to avert the calamity of war, and
that they are equally prepared to act with the same earnestness
and cordiality for the preservation of the Ottoman Empire,
if the Emperor of Russia should still be unwilling to negotiate
for peace on fair and reasonable terms.

The time has now arrived when it is incumbent on the two
Governments to prepare for all the contingencies of war ; and
among those contingencies it has been impossible for them to
overlook the danger to which their subjects and their com-
merce on the high seas may be exposed by the machinations
of their enemy, who, though unable from his own resources
materially to injure either, may seek to derive means of offence
from countries whose Governments take no part in the contest
which he has provoked.

But it is a necessary consequence of the strict union and
alliance which exists between Great Britain and France, that,
in the event of war, their conjoint action should be felt by
Russia in all parts of the world ; that not only in the Baltic,
and in the waters and territory of Turkey, their counsels, their
armies, and their fleets, should be united either for offensive
or defensive purposes against Russia, but that the same spirit
of union should prevail in all quarters of the world, and that
whether for offence or defence the civil and military and naval
resources of the British and French Empires should be directed
to the common objects of protecting the subjects and commerce
of England and France from Russian aggression, and of de-
priving the Russian Government of the means of inflicting
injury on either.

For these reasons Her Majesty's Government have agreed
with that of His Majesty the Emperor of the French to instruct
their civil and naval authorities in foreign parts to consider
their respective subjects as having an equal claim to protection
against Russian hostility ; and for this purpose, either singly
or in conjunction with each other, to act indifferently for the
support and defence of British and French interests. It may
be that, in a given locality, one only of the Powers is represented
by a civil functionary, or by a naval force ; but, in such a
case, the influence and the power of that one must be exerted
as zealously and efficiently for the protection of the subjects
and interests of the other as if those subjects and interests
were its own.

I have accordingly to instruct you, Sir, to act in conformity
with this principle. You will consider it your duty to protect,
as far as possible, against the consequence of the hostilities

British and French Government Instructions 233

in which England and France may shortly be engaged with
Russia, the subjects and interests of France equally with those
of England ; and you will make known without reserve to the
French civil and naval authorities with whom you may have
means of communication, any dangers to which the interests
of either country may be exposed, or any opportunities with
which you may become acquainted of inflicting injury on the
common enemy.

Instructions to the same effect will be sent by the Govern-
ment of France to its civil and naval authorities in foreign
parts, and Her Majesty's Government concur with that of
France in anticipating the most favourable results from this
decided manifestation of the intimate . union which prevails
between them, and which it is their earnest desire should
influence their agents in all parts of the world at a moment
when they are about to engage in a contest with the Empire
of Russia for an object of such paramount interest to Europe
as the maintenance of the Turkish Empire. — I am, &c.

(Signed) Clarendon.

E. (2) INSTRUCTIONS TO BRITISH NAVAL OFFICERS.

By the Commissioners for executing the office of Lord High
Admiral of the United Kingdom of Great Britain and
Ireland.

The Earl of Clarendon, Her Majesty's Principal Secretary of
State for Foreign Affairs, having informed us that Her Majesty's
Government and that of France have agreed that their civil
authorities and naval forces in all parts of the world should
co-operate, or if necessary act singly, for the protection of the
interests of the subjects and commerce of the two nations,
whenever the same may stand in need of assistance, against the
hostile machinations of Russia ; and Lord Clarendon having
further signified the Queen's commands that an instruction to
that effect should be issued for the direction of Her Majesty's
naval forces in all parts of the world ; we transmit to you here-
with a copy of Lord Clarendon's letter, together with a copy of
a circular addressed by his Lordship to Her Majesty's Diplo-
matic and Consular Agents abroad ; and we hereby require and
direct you to conform yourself in all respects to the views and
instructions of Her Majesty's Government as expressed in Lord
Clarendon's letter, and in the circular in question.

We further acquaint you that a similar instruction has been

284 The Declaration of Paris

addressed by the French Government to the naval forces of
France.

We further require and direct you to take the earliest oppor-
tunity, after receipt of this order, of communicating in the most
friendly manner with the officer in command of the French
naval forces on your station, with the view of giving the fullest
and speediest effect to the intentions of Her Majesty's Govern-
ment and that of France.

Given under our hands the 24th February 1854.

(Signed) J. R. G. Graham.
Hyde Parker.

F. (l) CIRCULAR TO FRENCH DIPLOMATIC AND
CONSULAR AGENTS.

,-. Paris. Fevrier 1854.

Monsieur,

Forces d'admettre la possibility d'hostilit6s entre eux et la
Russie, le Gouvernement de Sa Majesty Imp6riale et celui de
Sa Majesty Britannique ont pense que I'alliance qu'ils ont con-
tractee en vue d'un danger commun devait couvrir tous ceux
de leurs int^rets que les consequences de la guerre pourraient
atteindre ou menacer. Quelle que soit I'etendue des ressources
dont ils disposent, notamment sur mer, ils ont k tenir compte
de I'impr^vu. II peut, si la guerre delate, se produire, dans des
parages oil les forces navales de chacun d'eux ne seraient point
constamment pr^sentes, des conjonctures ou leurs nationaux et
leur pavilion de commerce n'auraient pas, au moment n^cessaire,
tout I'appui indispensable a leur securite.

Les deux Gouvernements n'avaient qu'a s'inspirer de la
pens^e qui preside k leurs rapports actuels pour trouver un
moyen de pourvoir k ces ^ventualit^s, et ils I'ont vu dans
I'adoption concert^e d'un systeme de protection reciproque
embrassant ces int6rets diss6mines sous toutes les latitudes.
Les Agents diplomatiques et commerciaux, ainsi que les com-
mandants des forces navales, de chacun des deux pays, sur tous
les points du globe, devront done accorder leur appui aux sujets
et au commerce de I'autre, dans toutes les hypotheses ou ils
seraient menaces par I'ennemi commun.

En consequence. Monsieur, vous consid^rerez, en pareil cas,
les batiments et les sujets Anglais, dans votre ressort, comme
ayant le meme droit que les batiments et les sujets Frangais k
toute I'assistance que comportent vos attributions, et vous
donnerez avis de cette prescription aux officiers de Marine de

British and French Government Instructions 235

Sa Majesty Imp^riale qui seraient en position de concourir aux
mesures que les circonstances resultant de I'etat de guerre vous
paraitraient commander. Les Agents et les officiers de mer de
Sa Majeste Britannique recevront des instructions identiques,
et ainsi les sujets et le commerce des deux nations seront autoris^s
k compter sur la protection reciproque des Consuls et de la
Marine des deux Puissances.

Vous comprendrez, Monsieur, que je ne cherche point k
determiner k I'avance tous les cas qui pourront r^clamer votre
intervention. C'est a votre sagacity de vous diriger dans I'appli-
cation du principe destine k vous servir de r^gle de conduite.

Les deux Gouvernements ont tenu beaucoup moins a preciser
les circonstances et les formes dans lesquelles cette protection
devra s'exercer qu'a bien marquer le caract^re qu'elle doit
prendre. Mais, en donnant au monde ce nouveau temoignage
de I'unite de leurs vues et de la sincerite de leur alliance, ils sont
persuades que, pour assurer a cette mesure commune toute
I'efficacite desirable, leurs Agents n'ont besoin que de se bien
p^netrer de I'esprit de solidarite qui en a inspire aux deux
Cabinets la pensee. — Recevez, &c.

(Signe) Drouyn de Lhuys.

F. (2) INSTRUCTIONS TO FRENCH NAVAL OFFICERS.

Paris, Fivrier 1854.
Messieurs,

Ma depeche du 18 Fevrier a appele sp6cialement votre atten-
tion sur les graves complications qu'a fait naitre en Europe la
question d'Orient. Les n^gociations entamees pour denouer
pacifiquement le differend qui s'est eleve entre la Russie et la
Turquie sont demeurees sans resultat, et tout porte a croire que
de nouveaux efforts demeureront impuissants.

L'Angleterre et la France ont resolu de prot^ger I'Empire
Ottoman, et de s'opposer, meme par la force, aux projets
envahissans de la Russie. Ces deux grandes nations sont
intimement unies dans leur politique et se sont mutuellement
donn6 les gages les plus certains de leur alliance. Leurs escadres
croisent de concert dans la Mer Noire ; elles se pretent recipro-
quement le plus loyal concours ; les deux Gouvernements, apr^s
avoir adopte une politique commune, se sont mis egalement
d'accord sur tous les moyens d'action.

Cette alliance de la France et d'Angleterre ne doit pas se
r6v61er seulement dans les mers d'Europe. Le Gouvernement
de Sa Majesty Imperiale et celui de la Reine de la Grande

236 The Declaration of Paris

Bretagne desirent que la meme union, le meme accord, r^gnent
sous toutes les latitudes.

Les forces navales de TAngleterre et de la France doivent
done se preter un mutuel concours dans toutes les regions meme
les plus lointaines.

Immediatement apres la reception de ces instructions, vous
aurez soin de vous mettre eYi relation avec les commandants des
stations ou des batiments de la Grande Bretagne. Vous devrez
combiner, de concert avec eux, toutes les mesures qui auraient
pour objet de proteger les interets, la puissance ou I'honneur du
drapeau des deux nations amies. Vous vous preterez dans ce
but une mutuelle assistance, soit que vous deviez attaquer
I'ennemi, quand les hostilites auront commence ou quand la
declaration de guerre aura ete faite, soit que vous vous trouviez,
dhs ce moment, dans I'obligation de vous defendre.

Vous devrez accorder votre protection aux batiments du
commerce de la Grande Bretagne au meme titre que les batiments
de guerre de I'Angleterre preteront aide et protection aux navires
marchands de notre nation.

En un mot, les deux Gouvernements de France et d'Angle-
terre d^sirant que leurs forces navales armees agissent comme si
elles appartenaient k une seule et meme nation, je compte que,
pour ce qui vous concerne, vous ne perdrez jamais de vue cette
r^gle de conduite, et que vous saurez la pratiquer de mani^re
k cimenter davantage encore, s'il se peut, I'intime union des
deux pays.

Tant que les hostilites entre la France et I'Angleterre d'une
part, et la Russie de I'autre, n*auront pas commence ou que la
declaration de guerre n'aura pas 6te faite, vous vous dispenserez
de prendre I'initiative des mesures agressives, et vous vous
tiendrez sur la defensive. J'aurai soin, aussitot que le moment
sera venu, de vous transmettre toutes les instructions necessaires
pour I'attaque. — Recevez, &c.

(Sign^) Duces.

Board of Trade Correspondence 237

Correspondence between Messrs Martin, Levin <& Adler
and the Board of Trade, February-March 1854.

To The President of the Board of Trade.

13 Trinity Square, Tower Hill,
February 24, 1854.
Right Honourable Sir,

We shall feel greatly obliged by your informing us whether,
in the event of a war between this country and Russia, Russian
goods imported from neutral ports would be considered contra-
band, or would they be fairly admissible into England ?

Being much interested in this question, we solicit the favour
of a reply, — And remain, with due respect, &c.

(Signed) pro Martin, Levin & Adler,
J. H. Hamblen.

To The Right Honourable the President of the Board
OF Trade.

13 Trinity Square, Tower Hill,
March 9, 1854.
Sir,

On the 24th ultimo, we took the liberty of addressing you
a letter, of which the following is a copy : — " We shall feel
greatly obliged by your informing us whether, in the event of a
war with Russia, Russian goods imported from neutral ports
would be considered contraband, or would they be fairly ad-
missible into England ? Being much interested in this question,
we solicit the favour of your reply, and remain with due
respect," &c.

To this letter we have received no answer of any kind,
which makes us fear that ours did not reach its destination.
May we respectfully, but urgently, solicit a reply to the present
as early as possible ? The question is one of vital interest to
us. We have now considerable quantities of Russian goods
on the way from that country to England, partly by land
via Germany ; this must be our apology for troubling you,

238 The Declaration of Paris

and as we cannot tell at what precise time they may arrive
here, we do not know until favoured with your answer in what
position we stand. — ^We remain, ifec.

(Signed) Martin, Levin & Abler.

Office of Committee of Privy Council for Trade,
Whitehall, March 10, 1854.
Gentlemen,

With reference to your letter of yesterday's date, in which
you request a reply to the question contained in your letter
of the 24th ultimo, as to the treatment of Russian produce in
this country, in the event of a war with Russia, I am directed
by the Lords of the Committee of Privy Council for Trade to
inform you, that they are in communication with Her Majesty's
Secretary of State for Foreign Affairs on the subject, and that
a reply will be sent to your letter of the 24th ultimo so soon
as the decision of Her Majesty's Government as to the course
to be adopted in this matter shall enable them to do so. —
I am, &c.

(Signed) J. Emerson Tennent.

Messrs Martin, Levin & Adler.

Office of Committee of Privy Council for Trade,
Whitehall, March 14, 1854.
Gentlemen,

In reply to your letter of the 24th February, requesting to
be informed whether, in the event of war between this country
and Russia, Russian goods imported from neutral ports would
be considered contraband, or would be admissible into England ;

I am directed by the Lords of the Committee of the Privy
Council for Trade to inform you, that in the event of war, every
indirect attempt to carry on trade with the enemy's country
will be illegal ; but, on the other hand, bond-fide trade not
subject to the objection above stated, will not become illegal,
merely because the articles which form the subject-matter of
that trade were originally produced in an enemy's country. —
I am, &c.

(Signed) J. Emerson Tennent.

Messrs Martin, Levin & Adler.

Board of Trade Correspondence 239

18 Trinity Square, Tower Hill,
March 15, 1854.
Sir,

We beg to acknowledge receipt of your favour of yesterday,
in answer to our inquiry relative to Russian produce imported
from neutral ports, in the event of war. You therein state,
that " every indirect attempt to carry on trade with the enemy's
country will be illegal ; but, on the other hand, bond-fide trade
not subject to the objection above stated, will not become
illegal, merely because the articles which form the subject-
matter of that trade were originally produced in an enemy's
country."

We are very desirous to be informed where the line of dis-
tinction is to be drawn between " an indirect attempt to carry
on trade," and a " bond-fide trade," as we cannot at present
see how, in case of war, any Russian goods could be imported
into this country, without such importation coming under
the head of an indirect attempt to carry on trade with the
enemy's country ; unless the interpretation put upon your
letter by several of the merchants with whom we have conferred
upon it, be the true one, viz., that a British subject buying
(by his agents) Russian produce in Russia, and importing the
same, via Germany (a neutral country), will be acting illegally,
and his goods would be seized on their arrival here ; but that
a neutral subject buying Russian goods and consigning them
to this country from a neutral port, will be considered to be
carrying on a bond-fide trade, and his merchandise will be
admitted for consumption into England. This view of the case
would give such a decided advantage to the neutral over the
British subject, that we cannot believe such to be the intention
of the Government. We therefore feel it necessary to put the
present question, trusting we may be favoured with an explicit
reply :

In the event of war being declared between this country
and Russia, will it be allowable to import Russian produce (the
property of British or neutral subjects) into this country from
neutral ports ? — We remain, &c.

(Signed) pro Martin, Levin & Adler,
J. H. Hamblen.

To the Secretary, Marine Department,
Board of Trade.

240 The Declaration of Paris

Office of Committee of Privy Council for Trade,
Whitehall^ March 16, 1854.
Gentlemen,

In reply to the inquiry contained in your letter of the 15th
instant, whether, in the event of war being declared between
this country and Russia, it will be allowable to import Russian
produce, the property of British or neutral subjects, from
neutral ports, I am directed by the Lords of the Committee of
Privy Council for Trade to refer you to the general principle
laid down in my letter of the 14th, and to repeat, that in the
case of articles originally produced in Russia, but since pur-
chased from neutrals at a neutral port, and in the ordinary course
of trade with such port by British merchants, the fact of their
having been originally produced in Russia will be immaterial. —
I am, &c.

(Signed) J. E. Tennent.

Messrs Martin, Levin & Adler.

Declarations to the Neutrals, March 1854.

A.— GREAT BRITAIN.

Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, having been compelled to take up Arms in support
of an Ally, is desirous of rendering the War as little onerous as
possible to the Powers with whom she remains at Peace.

To preserve the Commerce of Neutrals from all unnecessary
Obstruction, Her Majesty is willing, for the present, to waive
a Part of the belligerent Rights appertaining to Her by the Law
of Nations.

It is impossible for Her Majesty to forego the Exercise of Her
Right of seizing Articles contraband of War, and of preventing
Neutrals from bearing the Enemy's Despatches, and She must
maintain the Right of a Belligerent to prevent Neutrals from
breaking any effective Blockade which may be established with
an adequate Force against the Enemy's Forts, Harbours, or
Coasts.

But Her Majesty will waive the Right of seizing Enemy's

Declarations to the Neutrals 241

Property laden on board a neutral Vessel, unless it be contraband
of War.

It is not Her Majesty's Intention to claim the Confiscation
of neutral Property, not being contraband of War, found on
board Enemy's Ships ; and Her Majesty further declares, that
being anxious to lessen as much as possible the Evils of War,
and to restrict its Operations to the regularly organised Forces
of the Country, it is not Her present Intention to issue Letters
of Marque for the commissioning of Privateers.

Westminster, March 28, 1854.

B.— FRANCE.

Paris, le 29 mars 1854.
Sire,

A une epoque ou les relations maritimes et les interets com-
merciaux occupent une si large place dans I'existence des peuples,
11 est du devoir d'une nation qui se trouve contrainte a faire la
guerre de prendre les mesures necessaires pour en adoucir autant
que possible les effets, en laissant au commerce des peuples
neutres toutes les facilites compatibles avec cet etat d'hostilite
auquel ils cherchent a demeurer etrangers.

Mais il ne suffit pas que les bellig6rants aient la pensee intime
de respecter tou jours les droits des neutres ; ils doivent de plus
s'efforcer de calmer, par avance, ces inquietudes que le commerce
est tou jours si prompt a concevoir, et ne laissant planer aucun
doute sur les principes qu'ils entendent appliquer.

Un reglement sur les devoirs des neutres pourrait paraitre
une sorte d'atteinte a la souverainete des peuples qui veulent
garder la neutralite ; une declaration spontanee des principes
auxquels un belligerant promet de conformer sa conduite semble,
au contraire, le temoignage le plus formel qu'il puisse donner de
son respect pour les droits des autres nations.

C'est dans cette pensee qu'apr^s m'etre concerte avec le
Gouvernement de Sa Majeste Britannique, j'ai I'honneur de sou-
mettre a la haute approbation de Votre Majest6 la declaration
suivante.

Je suis avec respect. Sire, de Votre Majesty, le tres-humble
et tres-ob6issant serviteur et fiddle sujet.

Sign^ : Drouyn de Lhuys.
Approuve :

Signe : Napoleon.

242 The Declaration of Paris

D]£CLARATION RELATIVE AUX NEUTRES, AUX LETTRES DE
MARQUE, ETC.

Sa Majeste I'empereur des Fran9ais, ayant ete forcee de
prendre les armes pour soutenir un allie, desire rendre la guerre
aussi peu onereuse que possible aux puissances avee lesquelles
elle demeure en paix.

Afin de garantir le commerce des neutres de toute entrave
inutile, Sa Majeste consent, pour le present, a renoncer a une
partie des droits qui lui appartiennent comme puissance belli-
g^rante, en vertu du droit des gens.

II est impossible a Sa Majesty de renoncer a I'exercice de son
droit de saisir les articles de contrebande de guerre et d'empecher
les neutres de transporter les depeches de I'ennemi. Elle doit
aussi maintenir intact son droit, comme puissance bellig^rante,
d'empecher les neutres de violer tout blocus effectif qui serait
mis, a I'aide d'une force suffisante, devant les ports, les rades ou
cotes de I'ennemi.

Mais les vaisseaux de Sa Majesty ne saisiront pas la propriety
de I'ennemi chargee a bord d'un batiment neutre, a moins que
cette propriete ne soit contrebande de guerre.

Sa Majeste ne compte pas revendiquer le droit de confisquer
la propriete des neutres, autre que la contrebande de guerre,
trouvee a bord des batiments ennemis.

Sa Majeste declare en outre que, mue par le desir de diminuer
autant que possible les maux de la guerre et d*en restreindre les
operations aux forces reguli^rement organisees de I'^fitat, elle n'a
pas, pour le moment, I'intention de delivrer des lettres de marque
pour autoriser les armements en course.

Creation of Prize Courts 243

Creation of Prize Courts*

A.— ENGLAND.

(l) ORDER IN COUNCIL.

At the Court at Buckingham Palace,
the 29th Day of March 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Her Majesty having determined to afford active assistance
to Her Ally, His Highness the Sultan of the Ottoman Empire,
for the protection of His Dominions against the encroachments
and unprovoked aggression of His Imperial Majesty, the Emperor
of all the Russias, Her Majesty therefore is pleased, by and with
the advice of Her Privy Council, to order, and it is hereby
ordered, that General Reprisals be granted against the Ships,
Vessels, and Goods of the Emperor of all the Russias, and of
His Subjects, or others inhabiting within any of His Countries,
Territories, or Dominions, so that Her Majesty's Fleets and Ships
shall and may lawfully seize all Ships, Vessels, and Goods
belonging to the Emperor of all the Russias, or his Subjects,
or others, inhabiting within any of His Countries, Territories, or
Dominions, and bring the same to Judgment in such Courts of
Admiralty within Her Majesty's Dominions, Possessions or
Colonies, as shall be duly commissionated to take cognizance
thereof. And to that end Her Majesty's Advocate General,
with the Advocate of Her Majesty in Her Office of Admiralty,
are forthwith to prepare the Draught of a Commission, and
present the same to Her Majesty at this Board, authorizing the
Commissioners for executing the Office of Lord High Admiral to
will and require the High Court of Admiralty of England, and
the Lieutenant and Judge of the said Court, his Surrogate or
Surrogates, as also the several Courts of Admiralty within Her
Majesty's Dominions which shall be duly commissionated to
take cognizance of and judicially proceed upon all and all manner
of Captures, Seizures, Prizes and Reprisals, of all Ships, Vessels,
and Goods that are or shall be taken, and to hear and determine

244 The Declaration of Paris

the same, and according to the course of Admiralty, and the Law
of Nations, to adjudge and condemn all such Ships, Vessels,
and Goods, as shall belong to the Emperor of all the Russias,
or his Subjects, or to any others inhabiting within any of his
Countries, Territories or Dominions ; And they are likewise
to prepare and lay before Her Majesty at this Board, a Draught
of such Instructions, as may be proper to be sent to the said
several Courts of Admiralty, in Her Majesty's Dominions,
Possessions and Colonies, for their guidance herein.

From the Court at Buckingham Palace this Twenty-ninth
day of March One thousand eight hundred and fifty-four.

Cranworth, C. William Molesworth.

Granville, P. Lansdowne.

Argyll, C. P. S. J. Russell.

Breadalbane. Abercorn.

Clarendon. Mulgrave.

Newcastle. Ernest Bruce.

Sidney Herbert. Drumlanrig.

Stephen Lushington. I. R. Graham.

W. E. Gladstone. Aberdeen.

(2) ORDER IN COUNCIL APPROVING DRAFT COMMISSION.

Whereas there was this day read at the Board the annexed
Draught of a Commission authorizing and enjoining the Com-
missioners for executing the Office of Lord High Admiral of Great
Britain or any two or more of them to will and require the High
Court of Admiralty of England and the Lieutenant and Judge
of the said Court his Surrogate or Surrogates as also the several
Courts of Admiralty within Her Majesty's Dominions Possessions
or Colonies which shall be duly commissioned and thereby author-
izing and requiring them to take cognizance of and judicially
to proceed upon all and all manner of Captures Seizures
Prizes and Reprisals, of all Ships and Goods that are or shall
be taken and to hear and determine the same and according
to the course of Admiralty and the laws of nations to adjudge
and condemn all such ships and vessels and goods as shall belong
to the Emperor of Russia or to his subjects or to any others
inhabiting within any of his countries, territories or dominions
unless licensed by Her Majesty or exempted by the operation
and effect of an Order of Her Majesty made and dated this 29th
day of March ^ for exempting from capture or detention Russian
Vessels under Special circumstances or any future order in this be-
half Her Majesty taking the same into Consideration was pleased

1 Document No. 9 (4).

Creation of Prize Courts 245

with the advice of Her Privy Council to approve thereof and to
Order as it is hereby Ordered that the Rt. Hon-ble Visct Palmer-
ston One of Her Majesty's Principal Secretaries of State do cause
the said Commission to be prepared for Her Majesty's Royal
Signature with a proper warrant for the immediate passing the
same under the Great Seal of the United Kingdom of Great
Britain and Ireland.

Commission.

Victoria by the Grace of God of the United Kingdom of
Great Britain and Ireland Queen Defender of the Faith and so
forth to Our right trusty and wellbeloved Councillor Sir James
Robert George Graham Baronet Our trusty and wellbeloved
Hyde Parker Esquire Companion of Our Most Hon-ble Order
of the Bath Vice Admiral of the Blue Squadron of Our Fleet ;
Maurice Frederick Fitzhardinge Berkeley Esq're Companion of
Our Most Hon'ble Order of the Bath Rear Admiral of the White
Squadron of Our Fleet Richard Saunders Dundas Esquire
Companion of Our Most Hon'ble Order of the Bath Rear Admiral
of the Blue Squadron of Our Fleet ; Alexander Milne Esq're
Captain in Our Navy and William Francis Cowper Esq're Our
Commissioners for executing the Office of Lord High Admiral
of Our United Kingdom of Great Britain and Ireland and the
Dominions thereunto belonging and to Our Commissioners for
executing that Office for the time being Greeting. Whereas
We have determined to afford active assistance to Our Ally
His Highness the Sultan of the Ottoman Empire for the protec-
tion of his Dominions against the encroachments and unprovoked
aggression of His Imperial Majesty the Emperor of all the
Russias : And whereas by and with the Advice of Our Privy
Council we have ordered that General Reprisals be granted
against the Ships Vessels and Goods of the Emperor of all the
Russias and of his Subjects and others inhabiting within any
of his Countries Territories or Dominions so that Our Fleets and
Ships shall and may lawfully seize all Ships Vessels and Goods
belonging to the Emperor of all the Russias or his Subjects or
others inhabiting within any of his Countries Territories or
Dominions and bring the same to Judgment in such Courts of
Admiralty within Our Dominions Possessions or Colonies as
shall be duly commissionated to take cognizance thereof These
are therefore to authorize and We do hereby authorize and
enjoin you Our said Commissioners now and for the time being
or any two or more of you to will and require the High Court
of Admiralty of England and the Lieutenant and Judge of the
said Court and his Surrogate and Surrogates and also the several

246 The Declaration of Paris

Courts of Admiralty within Our Dominions Possessions or
Colonies which shall be duly commissionated and they are
hereby authorized and required to take cognizance of and
Judicially to proceed upon all and all manner of Captures
Seizures Prizes and Reprisals of all Ships Vessels and Goods
already seized and taken and which hereafter shall be seized
and taken and to hear and determine the same and according
to the Course of Admiralty and Law of Nations to adjudge and
condemn all such Ships Vessels and Goods as shall belong to
the Emperor of All the Russias or to his Subjects or to any
others inhabiting within any of his Countries Territories or
Dominions. In witness whereof we have caused Our Great
Seal of Our United Kingdom of Great Britain and Ireland to
be put and affixed to these Presents. Given at Our Court at
St James's the 3rd day of April in the year of Our Lord 1854,
and in the 17th year of Our Reign.

(3) WARRANT OF THE LORDS COMMISSIONERS OF THE
ADMIRALTY REQUIRING THE HIGH COURT OF AD-
MIRALTY TO PROCEED IN PRIZE CAUSES, &c.

By the Commissioners for executing the Office of Lord High
Admiral of the United Kingdom of Great Britain and
Ireland, &c.

Her Majesty having been pleased by the Commission under
the Great Seal of the United Kingdom of Great Britain and
Ireland bearing date the Third day of April One thousand eight
hundred and fifty-four to authorize us to the effect following
as by the Commission itself herewith sent you to remain of
Record in the Registry of the High Court of Admiralty of England
doth more at large appear. These are in Her Majesty's Name
and Our's to will and require the High Court of Admiralty of
England, and you the Lieutenant and Judge of the said Court,
and your Surrogate and Surrogates, and you are hereby author-
ized and required to take cognizance of, and to judicially proceed
upon all and all manner of Captures, Seizures, Prizes and Re-
prisals of all Ships Vessels and Goods that are or shall be
taken, and to hear and determine the same, and according to
the course of Admiralty, and the Law of Nations to adjudge
and condemn all such Ships Vessels and Goods, as shall belong
to the Emperor of all the Russias, or his Subjects, or to any
others inhabiting within any of his Countries, Territories or
Dominions, which shall be brought before you for Trial and
Condemnation.

And for so doing this shall be your Warrant.

Creation of Prize Courts 247

Given under our hands and the Seal of the Office of Admiralty
this Fourth day of April One thousand eight hundred
and fifty-four.

Hyde Parker. /
r. s. dundas.

To The Right Honourable Stephen Lushington, D.C.L.,
Judge of the High Court of Admiralty of England.

By command of their Lordships.

W. A. B. Hamilton.

B.— FRANCE.

D]fiCRET PORTANT INSTITUTION D'UN CONSEIL
DES PRISES.
Napoleon, etc. etc.

Vu la declaration faite par nos ordres au Senat et au Corps
l^gislatif, le 27 mars dernier, relativement a I'etat de guerre
existant avec la Russie ;

Vu notre declaration du 29 mars dernier, relative aux neutres,
aux lettres de marque, etc. etc. ;

Vu la convention conclue le 10 mai dernier entre nous et Sa
Majeste la reine du royaume uni de la Grande-Bretagne et
d'Irlande, relativement au jugement et au partage des prises ;

Notre conseil d'^fitat entendu,

Avons decr^t^ et decretons ce qui suit :

Art. 1*'. Un conseil des prises est institue a Paris.

Art. 2. Ce conseil statue sur la validite de toutes les prises
maritimes faites dans le cours de la presente guerre, et dont le
jugement doit appartenir a I'autorite fran9aise. II statue
egalement sur les contestations relatives a la qualite des navires
neutres ou ennemis, naufrages ou echoues, et sur les prises
maritimes amenees dans les ports de nos colonies.

Art. 3. Ce conseil est compose : 1° d'un conseiller d'lStat,
president ; — 2° de six membres, dont deux pris parmi les maitres
de requetes de notre conseil d']6tat ; — 3° d'un commissaire du
gouvernement qui donne ses conclusions sur chaque affaire.

Les membres du conseil des prises sont nommes par d^cret
imperial, sur la presentation de nos ministres des affaires 6tran-
g^res, de la marine et des colonies.

Leurs fonctions sont gratuites.

Un secr6taire-greffer est attache au conseil.

248 The Declaration of Paris

Art. 4. Les stances du conseil des prises ne sont pas pub-
liques. Ses decisions ne pourront etre rendues que par cinq
membres au moins. Le commissaire du gouvernement est,
en cas d'absence ou d'empechement, remplace par I'un des
membres du conseil.

Art. 5. Les decisions du conseil des prises ne sont ex^cu-
toires que huit jours apres la communication officielle qui
en est faite a nos ministres des affaires etrang^res, de la
marine et des colonies.

Art. 6. Les decisions rendues par le conseil des prises peuvent
nous etre deferees en notre conseil d'fitat, soit par le commissaire
du gouvernement, soit par les parties interessees. Le recours
doit etre exerce par le commissaire du gouvernement dans les
trois mois de la decision, et par les parties interessees dans le
trois mois de la notification de cette decision. Ce recours n'a pas
d'effet suspensif, si ce n*est pour la repartition definitive du
produit des prises. Toutefois, le conseil des prises pent ordonner
que I'ex^cution de sa decision n'aura lieu qu'a la charge de
fournir caution. Dans tous les cas, il pent etre ordonne en notre
conseil d'lStat qu'il sera sursis a I'execution de la decision contre
laquelle un pourvoi est dirige, ou qu'il sera fourni une caution
avant cette execution.

Art. 7. Les avocats a notre conseil d'^fitat ont seuls le droit
de signer les memoires et requetes qui sont presentes au conseil
des prises.

Art. 8. Les Equipages des batiments de Sa Majesty la
reine du royaume uni de la Grande-Bretagne et d'Irlande sont
representes devant le conseil des prises par le consul de leur
nation ou par tout autre agent que designe le gouvernement
britannique.

Art. 9. Les agents consulaires Strangers peuvent presenter
au conseil des prises toutes les observations qu'ils jugent con-
venables dans I'interet de leurs nationaux, mais seulement par
I'intermediaire du commissaire du gouvernement.

Art. 10. Les frais de secretariat et autres depenses accessoires
occasionnees par le service du conseil des prises forment un
chapitre special au budget du minist^re de la marine et des
colonies.

Art. 11. Les dispositions de I'arret^ des consuls du 6 germinal
an VIII. et des autres r^glements non contraires a notre present
d^cret sont maintenues.

Sont n^anmoins abrog^s les articles 9, 10 et 11 de I'arret^
du 6 germinal an VIII.

Art. 12. Nos ministres secretaires d'^fitat au departement
des affaires etrang^res et au departement de la marine et des

Despatches announcing Declaration to Neutrals 249

colonies sont charges, chacun en ce qui le concerne, de I'ex^eu-
tion du present decret.

Fait au palais de Saint-Cloud, le 18 juillet 1854.

Napoleon.
Par I'Empereur,

Le ministre secretaire d'Etai au departement
des affaires etrangtres.
1 Sign6 : Drouyn de Lhuys.

Le ministre secretaire d^J^tat au departement
de la marine et des colonies.
Signe : Th. Duces.

Circular Despatches announcing the Declaration to
the Neutral Powers, March, April, 1854.

A.— BRITISH CIRCULAR DESPATCH CONTAINING DRAFT OF
NOTE TO BE ADDRESSED BY AGENTS ABROAD TO
FOREIGN COURTS, ACCOMPANYING H.M.'S DECLARATION
OF MARCH 28, 1854.

Her Majesty the Queen of the United Kingdom of Great
Britain and Ireland and His Majesty the Emperor of the French,
being compelled to take up arms for the purpose of repelling
the aggression of H.M. the Emperor of Russia upon the Ottoman
Empire, and being desirous to lessen as much as possible the
disastrous consequences to commerce resulting from a state of
Warfare, their Majesties have resolved for the present not to
authorise the issue of letters of marque.

In making this resolution known, they think it right to
announce at the same time the principles upon which they will
be guided during the course of this war with regard to the
navigation and commerce of neutrals.

H.M. the Queen of the United Kingdom of Great Britain
and Ireland has accordingly published the accompanying
Declaration, which is identical with that published by H.M.
the Emperor of the French.

In thus restricting within the narrowest limits the exercise
of their rights as belligerents, the Allied Governments confidently
trust that the Governments of countries which may remain
neutral during this war will sincerely • exert every effort to
enforce upon their subjects/citizens the necessity of observing

250 The Declaration of Paris

the strictest neutrality. Her Britannic Majesty's Government
entertains the confident hope that the . . . Government will
receive with satisfaction the announcement of the resolutions
thus taken in common by the two Allied Governments, and
that it will, in the spirit of just reciprocity, give orders that
no privateer under Russian colours shall be equipped or vic-
tualled or admitted with its prizes in the ports of . . . and
also that the subjects/citizens of . . . shall rigorously abstain
from taking part in armaments of this nature or in any other
measure opposed to the duties of a strict neutrality.

B.— FRENCH CIRCULAR DESPATCH TO DIPLOMATIC AGENTS
IN NEUTRAL COUNTRIES.

Paris, March 30, 1854.
Monsieur,

Le Moniteur de ce jour public la declaration du gouverne-
ment fran9ais au sujet des neutres, ainsi que le rapport que
j'ai pr^sente a I'Empereur en la soumettant a sa haute appro-
bation. Vous trouverez ci-joint copie de ces deux documents.

Le gouvernement de Sa Majeste britannique a promulgu^,
de con cote, la meme declaration.

Au moment ou les deux Etats prennent les armes pour la
defense commune d'un allie, ils ne pouvaient donner une preuve
plus eclatante de la parfaite conformite de leurs sentiments et
de I'esprit de solidarite qui les unit, qu'en adoptant les memes
resolutions dans une matiere sur laquelle, jusqu'ici, leurs principes
avaient ^te si differents.

Penetre de cette solicitude que la France a tou jours t6moign6e
pour les neutres, le gouvernement de I'Empereur s'etait d^s
longtemps preoccupe des questions graves que la neutrality
soul^ve, pour en preparer la solution dans le sens le plus favor-
able aux interets des peuples avec lesquels il demeure en paix.
Je m'empresse de reconnaitre qu'il a trouve le gouvernement
de Sa Majesty britannique anim6 des memes desirs, et deja
penetre de la pens^e de laisser les neutres en possession de
tous les avantages que les necessites indispensables de la
guerre ne feraient point un devoir absolu de restreindre.

C'est cette communaute de vues qui a dicte la declaration
adoptee par les deux gouvernements ; et, je n'hesite pas a
le dire, jamais un document de cette nature n'a 6te con9U dans
des termes aussi favorables.

L'intention de ne point d61ivrer de lettres de marque y est
ofiiciellement annoncee ;

La n6cessite du blocus eifectif est admise ;

Despatches announcing Declaration to Neutrals 251

Le pavilion neutre couvrira la marchandise, et pourtant
la marchandise neutre restera libre sous pavilion ennemi :

Tels sont les avantages qui vont etre assures au commerce
pendant la guerre ; et meme, lorsqu'elle sera terminee, cette
declaration commune demeurera comme un precedent con-
siderable acquis a I'histoire de la neutralite.

Mais si I'union intime de la France et de I'Angleterre a permis
de consacrer un syst^me aussi avantageux pour les nations
neutres, il doit en r^sulter pour celles-ci une obligation plus
stricte de respecter d'une mani^re complete les droits des belli-
g^rants. Nous avons done raison d'esperer que les gouverne-
ments neutres non-seulement ne feront aucun acte qui puisse
presenter un caractere hostile, mais qu'ils s'empresseront de
prendre toutes les mesures necessaires pour que leurs sujets
s'abstiennent de toute entreprise contraire aux devoirs d'une
rigoureuse neutralite.

Je vous adresserai incessamment un pro jet de note dont
la redaction aura ete concertee avec le gouvernement de Sa
Majeste britannique, pour notifier la declaration presente au
gouvernement aupres duquel vous etes accredite.

C— FURTHER FRENCH CIRCULAR DESPATCH TO DIPLOMATIC
AGENTS IN NEUTRAL COUNTRIES.

Paris, April 5, 1854.
Monsieur,

J'ai I'honneur de vous transmettre le projet d'une note que
vous voudrez bien adresser immediatement au Gouvernement
aupres duquel vous etes accredite, pour lui faire connaitre les
principes que la France et la Grande-Bretagne appliqueront
aux neutres dans le cours de la guerre actuelle, ainsi que la
resolution qu'ont prise les deux gouvernements de ne point
delivrer, quant a present, de lettres de marque.

Le representant de Sa Majeste britannique recevra I'ordre
d'adresser au gouvernement de . . . une communication analogue.

Vous voudrez bien me transmettre la reponse du gouverne-
ment de . . . d^s qu'elle vous sera parvenue, et faire les de-
marches necessaires pour qu'elle soit conforme a la juste attente
des deux gouvernements.

Projet de note.

Le soussigne a re5u I'ordre de son gouvernement d'adresser
a S. Exc. M. . . .la communication suivante :

S.M. I'Empereur des Fran9ais et S.M. la Reine du Royaume-
Uni de la Grande-Bretagne vont se trouver dans la necessity

252 The Declaration of Paris

de recourir k la force des armes pour repousser les agressions
dont I'empire ottoman est I'objet de la part du gouvernement
de S.M. I'Empereur de Russie. Voulant, autant que possible,
diminuer pour le commerce les consequences funestes de I'etat
de guerre, Leurs Majestes ont resolu de ne point autoriser la
course, quant a present, par la delivrance de lettres de marque,
et de faire connaitre, en meme temps que cette resolution, les
principes qu'elles entendent appliquer a la navigation et au
commerce des neutres dans le cours de cette guerre. C'est
dans ce but que S.M. I'Empereur des Frangais a fait publier
la declaration ci-jointe, identique a celle que S.M. la Reine
du Royaume-Uni de la Grande-Bretagne et d'lrlande a fait
publier de son c6t6.

En restreignant I'exercise de leurs droits de bellig^rants
dans des limites aussi etroites, les gouvernements allies se croient
fondes a compter sur les efforts sinc^res des gouvernements
qui demeureront neutres dans cette guerre, pour faire observer
par leurs sujets (ou nationaux) les obligations de la neutrality
la plus absolue. En consequence, le gouvernement de S.M.
I'Empereur des Fran9ais a la confiance que le gouvernement de
. . . accueillera avec satisfaction I'annonce des resolutions
prises en commun entre les deux gouvernements allies, et voudra
bien, par une juste reciprocity, donner des ordres pour qu'aucun
corsaire sous pavilion russe ne puisse etre arm6 ni ravitaill6,
ni admis avec ses prises dans les ports de . . . et pour que les
sujets . . . (ou citoyens) . . . s'abstiennent rigoureusement de
prendre part a des armements de ce genre ou a toute autre
mesure contraire aux devoirs d'une stricte neutralite.

United States Despatches relating to the Declaration
to the Neutrals.^

A.— THE UNITED STATES MINISTER IN LONDON TO THE
UNITED STATES SECRETARY OF STATE.

.p, . London^ February 24, 1854.

I then inquired of his Lordship [Lord Clarendon] whether
the British Government had yet determined upon the course
they would pursue, during the impending war, in regard to
neutrals ; whether they would adhere to their old rule of captur-

* State Papers, vol. xlvi. pp. 821 et seq.

U.S. Despatches as to Declaration to Neutrals 253

ing the goods of an enemy on board the vessel of a friend, or
adopt the rule of " free ships free goods " ; observing that it was
of great importance to my countrymen, engaged in commerce,
that they should know the decision on this point as speedily as
possible.

He said that the question was then under the consideration
of the Cabinet, and had not yet been decided, but I should be
the very first person to whom he would communicate the result.
Intimating a desire to converse with me, informally and un-
officially, upon the subject, I informed him that I had no in-
structions whatever from my own Government in relation to
it, but, as an individual, I was willing frankly to express my
opinions. From what passed between us, I should consider it
a breach of confidence in me to report his private opinions, on
a question still pending before the Cabinet Council, and on which
its members are probably divided.

I can, however, have no objection to repeat to you the sub-
stance of my own observations.

I said that the Supreme Court of the United States had
adopted, in common with their own Courts, the principle that
a belligerent had a right, under the law of nations, to capture
the goods of an enemy on board the vessel of a friend, and that
he was bound to restore the goods of a friend captured on board
the vessel of an enemy. That, from a very early period of our
history, we had sought, in favour of neutral commerce, to change
this rule by Treaties with different nations, and, instead thereof
to adopt the principle that the flag should protect the property
under it, with the exception of contraband of war. That the
right of search was, at best, an odious right, and ought to be
restricted as much as possible. There was always danger, from
its exercise, of involving the neutral in serious difficulty with
the belligerent. The captain of a British man-of-war or privateer
would meet an American vessel upon the ocean and board her
for the purpose of ascertaining whether she was the carrier of
enemies' property. Such individuals, especially, as their own
interest was deeply involved in the question, were not always
the most competent persons to conduct an investigation of this
character. They were too prone to feel might and forget right.
On the other hand, the American captain of a vessel searched
would necessarily be indignant at what he might believe to be
the unjust and arbitrary conduct of the searching officer.
Hence bad blood would be the result, and constant and dangerous
reclamations would arise between the two nations.

I need not inform his Lordship that our past history had
fully justified such apprehensions. On the other hand, if the

254 The Declaration of Paris

rule that " free ships shall make free goiods " were established,
the right of the boarding officer would be confined to the
ascertainment of the simple facts, whether the flag was bond-
fide American, and whether articles contraband of war were on
board. He would have no investigation to make into the owner-
ship of the cargo. If, superadded to this rule, the correspond-
ing rule was adopted, that " enemy's ships shall make enemy's
goods," the belligerent would gain nearly as much by the latter
as he had lost by the former, and this would be no hardship
to the neutral owner of such goods, because he would place
them on board an enemy's vessel with his eyes open, and fully
sensible of the risk of capture.

I observed that the Government of the United States had
not, to my recollection, made any treaties recently on the prin-
ciple of " free ships free goods," and the only reason, I pre-
sume, was, that until the strong maritime nations, such as
Great Britain, France, and Russia, should consent to enter into
such treaties, it would be of little avail to conclude them with
the minor Powers.

This, I believe, is a fair summary of all I said, at different
times, in the course of a somewhat protracted conversation, and
I hope it may meet your approbation.

I shall not be astonished if the British Government should
yield their long-cherished principle, and adopt the rule, that the
flag shall protect the cargo. I know positively that Sweden
and Norway, Denmark, the Netherlands and Prussia, are urging
this upon them ; but what I did not know until the day before
yesterday was, that the Government of France was pursuing
the same course.

In this connection, I think it to be my duty to say that the
correspondence of Mr Schroeder, our Charge d' Affaires at Stock-
holm, a gentleman with whom I am not personally acquainted,
has furnished me the earliest and most accurate information
of the proceedings of the northern Powers on questions which
may affect the neutral interests of the United States.

Lord Clarendon referred to our neutrality law (of April 20th,
1818) ^ in terms of high commendation, and pronounced it

^ The Act of Congress of the 20th April 1818 provided in sec. 2 :
" That if any person shall, within the territory or jurisdiction of the
United States, enlist or enter himself, or hire or retain another person
to enlist or enter himself, or to go beyond the limits or jurisdiction of
the United States with intent to be enlisted or entered in the service
of any foreign Prince, State, colony, district, or people as a soldier, or as
a marine or seaman, on board of any vessel of war, letter of marque, or
privateer, every person so offending shall be deemed guilty of a high
misdemeanour, and shall be fined not exceeding 1000 dollars, and be
imprisoned not exceeding thi'ee years," etc.

U.S. Despatches as to Declaration to Neutrals 255

superior to their own, especially in regard to privateers. They
are evidently apprehensive that Russian privateers may be fitted
out in the ports of the United States, to cruize against their
commerce, though, in words, his Lordship expressed no such
apprehension. Would it not be advisable, after the war shall
have fairly commenced, for the President to issue his proclama-
tion upon the proper official authorities to be vigilant in executing
this law ? This could not fail to prove satisfactory to all the
belligerents.

The Hon. W. L. Marcy. James Buchanan.

B.— THE UNITED STATES MINISTER IN LONDON TO THE
UNITED STATES SECRETARY OF STATE.

London, March 17, 1854.
(Extract)

Lord Clarendon sent for me yesterday, and, in compliance
with his promise, read me the declaration which had been pre-
pared for Her Majesty, specifying the course she had determined
to pursue towards neutral commerce during the present war.
It announces distinctly, not only that the neutral flag shall
protect the cargo, except in cases of contraband, but that the
goods of neutrals captured on board an enemy's vessel shall be
restored to their owners. It fully adopts the principle that
" free ships shall make free goods," and also secures from con-
fiscation the property of a friend found on board the vessel of
an enemy.

The declaration on the subject of blockades, so far as I could
understand it, from the reading, is entirely unexceptionable
and in conformity with the doctrines which have always been
maintained by the Government of the United States.

Her Majesty also declared that she will issue no commissions
to privateers, or letters of marque during the war.

His Lordship then asked me how I was pleased with it ;
and I stated my approbation of it in strong terms.

I said that, in one particular, it was more liberal towards
neutral commerce than I had ventured to hope, and this was in
restoring the goods of a friend, though captured on the vessel
of an enemy.

He remarked that they had encountered great difficulties
in overcoming their practice for so long a period of years, and
their unvarying judicial decisions ; but that modern civilisation
required a relaxation in the former severe rules, and that war
should be conducted with as little injury to neutrals as was

256 The Declaration of Paris

compatible with the interest and safety of belligerents. He
also observed that he had repeated the conversation which he
had with me on these subjects to the Cabinet Council, and this
had much influence in inducing them to adopt their present
liberal policy towards neutrals.

He then expressed the hope that their course would prove
satisfactory to the Government of the United States ; and I
assured him that I had no doubt it would prove highly gratifying
to them.

I asked him if I were at liberty, in anticipation of the publica-
tion of Her Majesty's declaration, to communicate its substance
to yourself; and he replied, certainly, I was. It had not yet
undergone the last revision of the Cabinet ; but the principles
stated in it had received their final approbation, and would not
be changed.

If our shipping interest in the United States should feel as
anxious upon this subject as American owners of vessels in this
country, you may deem it advisable to publish a notice of the
practice which will be observed by Great Britain and France
towards neutrals during the continuance of the present war ;
and to this I can perceive no objection.

The Hon. W. L. Marcy. James Buchanan.

C— THE UNITED STATES MINISTER IN PARIS TO THE
UNITED STATES SECRETARY OF STATE.

Paris, March 22, 1854.
(Extract)

The allies, too, find themselves under the necessity of pro-
viding for future contigencies of a most delicate nature, by
instructions to their naval commanders, acting in concert, in
respect to neutral rights pending the war. In the past history
of the two countries, the principles of France on this subject
have been, as you are aware, entirely at variance with those
held by England. It is both delicate and difficult to produce
harmony in their combined action. The deep interest of the
European States, not engaged in this war, in the adoption by
the allies, with their absolute naval supremacy over Russia, of
measures which will give to the commerce of neutrals the most
perfect security, added to the earnest desire of the allies to
secure their co-operation, if to be had, and, if not, to avoid their
active opposition, has given to the subject the deepest interest,
and contributed to prepare the way for a fair and equitable
adjustment. I have looked to this subject with deep anxiety.

U.S. Despatches as to Declaration to Neutrals 257

and have endeavoured to guard against any possible violation
of our rights as a neutral, by the measures of the belligerents,
in the prosecution of the war. I have embraced every oppor-
tunity, since I have been in Paris, of impressing, by informal
conversation, on the Minister, and with the representatives of
foreign Powers here, that if those liberal principles which the
United States have always maintained were not recognized, my
Government could not be satisfied ; that with her vast com-
mercial marine, her enormous surplus products, her export and
import trade, and her large investments in the fisheries in the
Pacific and Atlantic Oceans, it was impossible that my country
could submit to any practical exercise of the rights of war which
would subject her citizens, their business, and their vessels to
vexatious searches, captures, or detentions ; that except in
cases of contraband, her flag must protect the cargo which it
covered, and the high seas must be what the God of nature
intended it — a free highway for all nations. The point on which
most apprehension is felt is the engagement of citizens and
vessels of the United States in privateering under the Russian
flag. I have urged, that, with every disposition to prevent such
unlawful proceedings by our people, the Government would find
much difficulty in enforcing its laws, unless sustained by public
opinion in the United States, and aided by the people, as well
as by officers of the Government ; that with the vast extent of
seacoast of the United States, the Government could not have
information of the preparation of vessels for such enterprizes,
in all cases, in time to suppress them, unless the people felt an
anxious desire that the laws should be executed ; that if the
allies adopted just and liberal measures in regard to neutral
rights, it would give profitable returns to a safe business, and
the entire mercantile community of the United States would,
from a sense of justice and of national duty, as well as of their
own interest, be found ready to aid the Government in executing
the laws ; that, tempting as might be the offers to engage under
the Russian flag to cruize against the commerce of the allies,
the danger of the service, the difficulty of realizing their prizes
by adjudication, and, above all, the actual profit of lawful trade,
under equitable and fair rules in respect to neutral rights, and
the public satisfaction at seeing just principles established among
nations, would probably prevent citizens, however bold and
adventurous, from taking part in the assaults on the commerce
of the allies.

The combination of circumstances is most auspicious to the
establishment of our cherished principles of neutral rights — ^the
rights of the weaker Powers against the aggressive pretensions

258 The Declaration of Paris

of the strong ; and the considerations of poUcy are too grave,
in their favour, to beUeve that so sagacious a statesman as Mr
Drouyn de Lhuys will fail to see them in all their force, nor is
there any doubt that he will be sustained by the Emperor.

It is fortunate, too, that the present state of things will
give to the British Cabinet a disposition to regard with favour
the relaxation and liberalization of their ancient views on this
subject.

The Hon. W. L. Marcy. J. Y. Mason.

D.— THE UNITED STATES MINISTER IN LONDON TO THE
UNITED STATES SECRETARY OF STATE.

,y . .. London, March 24, 1854.

In my last despatch, of the 17th instant, I omitted, for want
of time, to refer to the conversation between Lord Clarendon
and myself, on the general subject of privateering. He did not
propose the conclusion of a Treaty between Great Britain and
the United States for its suppression ; but he expressed a strong
opinion against it, as inconsistent with modern civilization, and
liable to great abuses. He spoke in highly complimentary terms
of the Treaties of the United States with different nations,
stipulating that if one of the parties be neutral and the other
belligerent, the subjects of the neutral accepting commissions
as privateers to cruize against the other from the opposing
belligerent, shall be punished as pirates.

These ideas were, doubtless, suggested to his mind by the
apprehension felt here that Americans will, during the existing
war, accept commissions from the Emperor of Russia, and that
our sailors will be employed to cruize against British commerce.

In short, although his Lordship did not propose a Treaty
between the 2 Governments for the total suppression of privateer-
ing, it was evident that this was his drift.

In answer, I admitted that the practice of privateering was
subject to great abuses ; but it did not seem to me possible,
under existing circumstances, for the United States to agree to
its suppression, unless the naval Powers would go one step
further, and consent that war against private property should
be abolished altogether upon the ocean as it had already been
upon the land. There was nothing really different in principle
or morality between the act of a regular cruizer and that of a
privateer in robbing a merchant vessel upon the ocean, and
confiscating the property of private individuals on board for the
benefit of the captor.

U.S. Despatches as to Declaration to Neutrals 259

But how would the suppression of privateering, without
going further, operate upon the United States ? Suppose, for
example, we should again unfortunately be engaged in a war
with Great Britain, which I earnestly hoped might never be the
ease ; to what a situation must we be reduced if we should
consent to abolish privateering.

The navy of Great Britain was vastly superior to that of
the United States in the number of vessels-of-war. They could
send cruizers into every sea to capture our merchant vessels,
whilst the number of our cruizers was comparatively so small as
to render anything like equality in this respect impossible. The
only means which we would possess to counterbalance in some
degree their far greater numerical strength, would be to convert
our merchant vessels, cast out of employment by the war, into
privateers, and endeavour, by their assistance, to inflict as much
injury on British as they would be able to inflict on American
commerce.

The genuine dictate of Christianity and civilization would
be to abolish war against private property upon the ocean
altogether, and only employ the navies of the world in public
warfare against the enemy, as their armies were now employed ;
and to this principle thus extended, it was highly probable the
Government of the United States would not object.

Here the conversation on this particular subject ended in a
good-natured manner ; and I am anxious to learn whether
what I have said in relation to it meets your approbation.

The Hon. W. L. Marcy. James Buchanan.

E.— THE UNITED STATES MINISTER IN PARIS TO THE
UNITED STATES SECRETARY OF STATE.

Paris, March 30, 1854.
(Extract)

In the Moniteur of this morning appeared a report of the
Minister of Foreign Affairs, and the declaration of the Emperor
of France, on the subject of neutrals, letters of marque, etc.,
pending the war. I enclose slips of the Moniteur containing
these several important documents. I think that you will
observe in them satisfactory recognition of liberal principles in
regard to the rights of neutrals.

The Hon. W. L. Marcy. J. Y. Mason.

260 The Declaration of Paris

F.— THE UNITED STATES MINISTER IN LONDON TO THE
UNITED STATES SECRETARY OF STATE.

London, March 31, 1854.
(Extract)

You will perceive that Her Majesty's declaration concerning
the commerce of neutrals is substantially the same as that
which I informed you it would be in my despatch of the 17th
instant. It has given great satisfaction to the diplomatic repre-
sentatives of neutral nations in London, and to no one more
than myself.

Indeed it is far more liberal than I had any reason to expect
it would have been, judging from the judicial decisions and past
history of the country.

The Hon. W. L. Marcy. James Buchanan.

G.— THE UNITED STATES CHARGilfi D'AFFAIRES AT STOCK-
HOLM TO THE UNITED STATES SECRETARY OF STATE.

Stockholm, April 10, 1854.
Sir,

A Swedish Ordinance was published yesterday, defining the
rights and obligations of such of the people as are engaged in
commerce and navigation. The document is interesting as
forming part of the history of the Northern neutrality. For
this and other reasons I have translated it entire.^ The marginal
notes which I shall add, will enable you to refer to any clause
that may chiefly interest you.

You will best know what reliance may be safely placed upon
the equitable promises which have been held out to neutrals by
the belligerent Powers ; seemingly triumphs of the enlightened
age over historic reminiscences of war. It would ill become
me to offer an opinion of the realities to be looked for ; but the
forebodings of the more intelligent men of the country weigh
upon this community ; and, although unconfessed by Govern-
ment, they are the real controlling influences in the Council
of State. — I have, etc.,

The Hon. W. L. Marcy. F. Schroeder.

* Thip Ordinance is printed in French among the Neutral Legislation
issued during the war (Document No. 14 M).

U.S. Despatches as to Declaration to Neutrals 261

H.— THE UNITED STATES SECRETARY OF STATE TO
THE UNITED STATES MINISTER IN LONDON.

Washington, April 13, 1854.
(Extract)

The course indicated to you by Lord Clarendon as that which
Great Britain had determined to pursue in the event of a
European war in regard to neutral commerce is entirely satis-
factory to this Government as to the 2 main points.

The proposition submitted to you — the same, I presume,
which Mr Crampton has confidentially submitted to me — are,
1st. That free ships make free goods, except articles contraband
of war ; and 2nd. That neutral property, not contraband, found
on board enemies' ships is not liable to confiscation. The
United States have long favoured the doctrine that the neutral
flag should protect the cargo, and endeavoured to have it
regarded and acted on as a part of the law of nations. There is
now, I believe, a fair prospect of getting this sound and salutary
principle incorporated into the international code.

There can be, I presume, no doubt that France cheerfully
concurs with Great Britain in adopting this principle as a rule of
conduct in the pending war. I have just received a despatch
from Mr Mason, in which he details conferences he had with the
French Ministers on the subject of neutral rights ; it does not
appear from the accounts he has given of them that the French
Government had intimated to him the course it intended to
pursue in regard to neutral ships and neutral property on board
enemy's ships. I have no doubt, however, that France has more
readily acquiesced in the indicated policy than Great Britain.

Both Great Britain and France, as well as Russia, feel much
concerned as to the course which our citizens will take in regard
to privateering. The two former Powers would at this time
most readily enter into conventions, stipulating that the subjects
or citizens of the party, being a neutral, who shall accept com-
missions or letters of marque, and engage in the privateer ser-
vice, the other party being the belligerent, may be treated as
pirates. A stipulation to this effect is contained in several of
our treaties, but I do not think the President would permit it
to be inserted in any new one. His objection to it does not arise
from a desire to have our citizens embark in foreign belligerent
service, but, on the contrary, he would much regret to see them
take such a course. Our laws go as far as those of any nation —
I think further — in laying restraints upon them in regard to
going into foreign privateer service. This Government is not

262 The Declaration of Paris

prepared to listen to any proposition for a total suppression
of privateering. It would not enter into any convention
whereby it would preclude itself from resorting to the merchant
marine of the country, in case it should become a belligerent
party.

The declaration which Her Britannic Majesty's Government
proposes to issue is distinct in interdicting to neutrals the coast-
ing and colonial trade with the belligerent, if not enjoyed by
them previous to the war. In regard to this trade, you are
aware that Great Britain asserted principles, in the wars result-
ing from the French Revolution, before she issued her obnoxious
Orders in Council, which this country held to be in violation of
the law of nations. Should she still adhere to those principles
in the coming conflict in Europe, and have occasion to apply
them to our commerce, they will be seriously controverted by
the United States, and may disturb our friendly relations with
her and her allied belligerents. The liberal spirit she has indi-
cated in respect of the cargoes under a neutral flag, and neutral
property which may be found on board of enemies' ships, gives
an implied assurance that she will not attempt again to assert
belligerent rights which are not well sustained by the well-
settled principles of international law.

In some respects, I think the law of blockade is unreasonably
rigorous towards neutrals, and they can fairly claim a relaxation
of it. By the decisions of the English Courts of Admiralty —
and ours have generally followed in their footsteps — a neutral
vessel which happens to be in a blockaded port is not permitted
to depart with a cargo, unless that cargo was on board at the
time when the blockade commenced, or was first made known.
Having visited the port in the common freedom of trade, a
neutral vessel ought to be permitted to depart with a cargo,
without regard to the time when it was received on board.

The right of search has heretofore been so freely used, and
so freely abused, to the injury of our commerce, that it is re-
garded as an odious doctrine in this country, and, if exercised
against us harshly in the approaching war, will excite deep and
widespread indignation. Caution on the part of belligerents
in exercising it towards us in cases where sanctioned by usage,
would be a wise procedure. As the law has been declared by
the decisions of Courts of Admiralty and elementary writers,
it allows belligerents to search neutral vessels for articles contra-
band of war, and for enemies' goods. If the doctrine is so
modified as to exempt from seizure and confiscation enemies'
property under a neutral flag, still the right to seize articles
contraband of war, on board of neutral vessels, implies the right

U.S. Despatches as to Declaration to Neutrals 263

to ascertain the character of the cargo. If used for such a
purpose and in a proper manner, it is not probable that serious
collisions would occur between neutrals and belligerents.

A persistent resistance by a neutral vessel to submit to a
search renders it confiscable, according to the settled determina-
tion of the English Admiralty. It would be much to be regretted
if any of our vessels should be condemned for this cause, unless
under circumstances which compromitted their neutraUty.

J. Buchanan, Esq. W. L. Marcy.

I.— THE FRENCH MINISTER AT WASHINGTON TO THE
UNITED STATES SECRETARY OF STATE.

Washington, April 28, 1854.
(Translation)

The Undersigned Envoy Extraordinary and Minister Pleni-
potentiary of France, has received orders from his Government
to address the following communication to the Honourable
Secretary of State.

His Majesty the Emperor of the French, and Her Majesty
the Queen of the United Kingdom of Great Britain, are about
to find themselves under the necessity of resorting to force of
arms in order to repel the aggressions of which the Ottoman
Empire is the object, on the part of His Majesty the Emperor
of Russia. Being desirous to lessen as much as possible, in
behalf of commerce, the fatal consequences of a state of war,
their Majesties have determined not to authorise privateering,
for the present, by issuing letters of marque, and to make known,
at the same time, that this determination is communicated,
the principles which they intend to apply to the navigation and
the commerce of neutrals during this war.

It was with this view that His Majesty the Emperor of the
French caused the accompanying declaration to be published ;
the same being identical with that which Her Majesty the Queen
of the United Kingdom of Great Britain and Ireland has caused
to be published on her side.

In confining the exercise of their rights of belligerents within
such narrow bounds, the Allied Governments consider them-
selves justified in relying upon the sincere efforts of those
Governments which shall remain neutral in this war, to cause
their respective citizens and subjects to observe the obligations
of strictest neutrality. Consequently, the Government of His
Majesty the Emperor of the French, trusts that the Government
of the United States will receive with satisfaction the announce-

264 The Declaration of Paris

ment of the determination taken in common between the two
AlHed Governments, and that it will, by way of just reciprocity,
give orders so that no privateer under the Russian flag shall be
allowed to be fitted out or victualled, nor admitted with its
prizes, in the ports of the United States, and in order that United
States citizens may rigorously abstain from taking part in equip-
ments of this kind, or in any other measure contrary to the duties
of a strict neutrality. — The Undersigned, etc..

The Hon. W. L. Marcy. Sartiges.

[A letter was written in similar terms by Mr Crampton,
British Minister to the United States, forwarding the Queen's
Declaration to the Secretary of State.]

J.— FIRST MARCY NOTE, APRIL 28, 1854.

United States of America,
Department of State.

The undersigned. Secretary of State of the United States, has
had the honor to receive the note of Mr Crampton, Her Britannic
Majesty's envoy extraordinary and minister plenipotentiary, of
the 21st instant, accompanied by the declaration of Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland,
in regard to the rule which will for the present be observed
towards those Powers with which she is at peace, in the existing
war with Russia.

The undersigned has submitted those communications to the
President, and received his direction to express to Her Majesty's
government his satisfaction that the principle that free ships
make free goods, which the United States have so long and so
strenuously contended for as a neutral right, and in which
some of the leading Powers of Europe have concurred, is to
have a qualified sanction by the practical observance of it in
the present war by both Great Britain and France — ^two of the
most powerful nations of Europe.

Notwithstanding the sincere gratification which Her Majesty's
declaration has given to the President, it would have been en-
hanced if the rule alluded to had been announced as one
which would be observed not only in the present, but in every
future war in which Great Britain shall be a party. The un-
conditional sanction of this rule by the British and French
governments, together with the practical observance of it in
the present war, would cause it to be henceforth recognised
throughout the civilised world as a general principle of inter-
national law. This government, from its very commencement,

U.S. Despatches as to Declaration to Neutrals 265

has labored for its recognition as a neutral right. It has
incorporated it in many of its treaties with foreign powers.
France, Russia, Prussia, and other nations, have, in various
way,s, fully concurred with the United States in regarding it
as a sound and salutary principle, in all respects proper to be
incorporated into the law of nations.

The same consideration which has induced Her Britannic
Majesty, in concurrence with the Emperor of the French, to
present it as a concession in the present war, the desire " to
preserve the commerce of neutrals from all unnecessary obstruc-
tion," will, it is presumed, have equal weight with the belli-
gerents in any future war, and satisfy them that the claims of
the principal maritime Powers, while neutral, to have it recog-
nised as a rule of international law, are well founded, and should
be no longer contested.

To settle the principle that free ships make free goods, except
articles contraband of war, and to prevent it from being called
again in question from any quarter or under any circumstances,
the United States are desirous to unite with other Powers in a
declaration that it shall be observed by each, hereafter, as a
rule of international law.

The exemption of the property of neutrals, not contraband,
from seizure and confiscation when laden on board an enemy's
vessel, is a right now generally recognised by the law of nations.
The President is pleased to perceive, from the declaration of
Her Britannic Majesty, that the course to be pursued by her
cruisers will not bring it into question in the present war.

The undersigned is directed by the President to State to Her
Majesty's minister to this government that the United States,
while claiming the full enjoyment of their rights as a neutral
power, will observe the strictest neutrality towards each and all
the belligerents. The laws of this country impose severe
restrictions not only upon its own citizens, but upon all persons
who may be resident within any of the territories of the United
States, against equipping privateers, receiving commissions,
or enlisting men therein, for the purpose of taking a part in
any foreign war. It is not apprehended that there will be any
attempt to violate the laws ; but should the just expectation
of the President be disappointed, he will not fail in his duty
to use all the power with which he is invested to enforce obedi-
ence to them. Considerations of interest and the obligations
of duty alike give assurance that the citizens of the United
States will in no way compromit the neutrality of their country
by participating in the contest in which the principal powers
of Europe are now unhappily engaged.

266 The Declaration of Paris

The undersigned avails himself of this opportunity to renew
to Mr Cramp ton the assurance of his distinguished consideration.

ixr u- 4. A loo ^osA W. L. Marcy.

Washmgton, April 28, 1854.

John F. Crampton, Esq., etc., etc.

K.— MR MARCY'S NOTE TO FRANCE.^
(Extrait du Moniteur du 23 Mai 1854.)

Paris, 23 Mai 1854.

Le gouvernement des Etats-Unis de I'Amerique du Nord
a repondu, le 28 Avril, a la communication qui lui avait 6te
faite par le ministre de France de la declaration des deux grandes
puissances maritimes de I'Europe relativement aux pavilions
neutres durant la guerre actuelle. Dans cette reponse, M. L.
Marcy exprime, au nom du president de I'Union, le voeu que
les maximes adoptees de concert par la France et I'Angleterre
deviennent pour I'avenir la regie de conduite de toutes les
nations civilis6es. Le secretaire d'Etat declare, en outre, que
son gouvernement a la ferme volonte d'observer strictement et
de faire observer de meme les devoirs de la neutralite. II
rappelle que la legislation du pays interdit severement a tout
citoyen am^ricain, ainsi qu'a toute personne etablie sur le ter-
ritoire de rUnion, les ^quipements de corsaires, les commissions,
les enrolements d'hommes en vue de prendre part a la guerre
^trangere. M. Marcy ajoute qu'il n'est pas a craindre que
quelque tentative ait lieu pour enfreindre ces lois, mais que,
dans le cas ou I'attente du gouvernement de I'Union a ce sujet
serait trompee, le President croirait devoir user du pouvoir
dont il est investi pour les faire respecter.

L.— THE UNITED STATES SECRETARY OF STATE TO THE
UNITED STATES MINISTER AT ST PETERSBURGH.

« Washington, May 9, 1854.

You have probably seen the joint declaration of Great
Britain and France, referred to in the enclosed copy of a Note
to Mr Crampton, Her Britannic Majesty's Minister to this
Government. This declaration was communicated to me by
Ministers of France and England, accompanied by a Note, to
which I replied. The Note to the French Minister is substan-
tially the same as that sent to Mr Crampton.

^ The text of the original Note was not available. The extract from
the Moniteur is reprinted from Ortolan's Diplomaiie de la Mer.

U.S. Despatches as to Declaration to Neutrals 267

It is the settled purpose of this Government to pursue such
a course, during the present war in Europe, as will give no cause
to either belligerent party to complain, and it sincerely hopes
neither will give this country any ground for dissatisfaction.

The danger of a misunderstanding is much less with Russia
than with Great Britain and France. I believe, however, these
latter Powers are desirous to pursue a fair and liberal course
towards neutrals, and particularly towards the United States.

You will observe that there is a suggestion in the enclosed
for a Convention among the principal maritime nations to unite
in a declaration that free ships should make free goods, except
articles contraband of war. This doctrine had heretofore the
sanction of Russia, and no reluctance is apprehended on her part
to becoming a party to such an arrangement. Great Britain
is the only considerable Power which has heretofore made a
sturdy opposition to it. Having yielded for the present in the
existing war, she thereby recognises the justice and fairness of
the principle and would hardly be consistent if she should with-
hold her consent to an agreement to have it hereafter regarded as
a rule of international law. I have thrown out the suggestion
to Great Britain and France to adopt this as a rule to be observed
in all future wars. The President may instruct me to make the
direct proposition to these and other Powers. Should Russia,
Great Britain, and France concur with the United States in
declaring this to be the doctrine of the law of nations, I do not
doubt that the other nations of the world would at once give
their consent and conform their practice to it. If a fair oppor-
tunity should occur, the President requests you to ascertain the
views of His Majesty the Emperor of Russia on the subject.

The decisions of Admiralty Courts in this and other countries
have frequently affirmed the doctrine that a belligerent may
seize and confiscate enemy's property found on board of a neutral
vessel ; the general consent of nations, therefore, is necessary
to change it. This seems to be a most favourable time for such
a salutary change. From the earliest period of this Government,
it has made strenuous efforts to have the rule that free ships
make free goods, except contraband articles, adopted as a prin-
ciple of international law ; but Great Britain insisted on a dif-
ferent rule. These efforts, consequently, proved unavailing ;
and now it cannot be recognised, and a strict observance of it
secured, without a conventional regulation among the maritime
Powers. This Government is desirous to have all nations agree
in a declaration that this rule shall hereafter be observed by
them respectively, when they shall happen to be involved in
any war, and that, as neutrals, they will insist upon it as a

268 The Declaration of Paris

neutral right. In this the United States are confident that they
will have the cordial consent and co-operation of Russia. —
I am, etc.,

T. H. Seymour, Esq. W. L. Marcy.

Proclamations and Orders in Council, March-April 1854.

(l) FEBRUARY 18.— PROCLAMATION PROHIBITING EXPORT
OF ARMS, STORES, ETC.

By the Queen — A Proclamation.
Victoria R.

Whereas by the Customs Consolidation Act, 1853, Section
150, certain Goods may, by Proclamation or Order of Her
Majesty in Council, be prohibited either to be exported or
carried Coastwise : And whereas We, by and with the Advice
of Our Privy Council, deem it expedient and necessary to
prohibit the Goods herein-after mentioned either to be exported
or carried Coastwise : We, by and with the Advice aforesaid,
do hereby Order and Direct, that from and after the Date
hereof, all Arms, Ammunition and Gunpowder, Military and
Naval Stores, and the following Articles, being Articles which
We have judged capable of being converted into, or made
useful in increasing the Quantity of. Military or Naval Stores,
that is to say. Marine Engines, Screw Propellers, Paddle Wheels,
Cylinders, Cranks, Shafts, Boilers, Tubes for Boilers, Boiler
Plates, Fire Bars, and every Article, or any other component
Part of an Engine or Boiler, or any Article whatsoever, which
is, can or may become applicable for the Manufacture of Marine
Machinery, shall be and the same are hereby prohibited either
to be exported from the United Kingdom or carried Coastwise.

Given at Our Court at Buckingham Palace, this Eighteenth
Day of February, in the Year of Our Lord One thousand
eight hiindred and fifty-four, and in the Seventeenth
Year of Our Reign.

God save the Queen.

Proclamations and Orders in Council 269

(2) MARCH 9.— PROCLAMATION AGAINST FITTING OUT OR
EQUIPPING VESSELS FOR WARLIKE PURPOSES.

By the Queen — A Proclamation.
Victoria R.

Whereas by an Act of Parliament passed in the Fifty-ninth
Year of the Reign of His late Majesty King George the Third,
entitled " An Act to prevent the enlisting or Engagement of
His Majesty's Subjects to serve in Foreign Service, and the
fitting out or equipping in His Majesty's Dominions Vessels for
Warlike Purposes, without His Majesty's Licence," it is amongst
other things enacted [recital of s. 7 of Foreign EnUstment Act,
1819, 59 G. III. c. 69]. And whereas it has been represented to
Us that Ships and Vessels are being built in several Places within
the United Kingdom, and are being equipped, furnished, and
fitted out especially with Steam Machinery, with Intent that
they shall be employed as aforesaid, without Our Royal Leave
or Licence for that Purpose first had or obtained or signified
as aforesaid ; We have therefore thought fit, by and with the
Advice of Our Privy Council, to issue this Our Royal Proclama-
tion, warning all Our Subjects against taking part in such
Proceedings, which We are determined to prevent and repress,
and which cannot fail to bring upon the Parties engaged in
them the Punishments which attend the Violation of the Laws.

Given at Our Court at Buckingham Palace, this Ninth Day
of March in the Year of our Lord One thousand eight
hundred and fifty-four, and in the Seventeenth Year
of Our Reign.

God SAVE the Queen.

On the 28th March Her Majesty issued a Declaration of the
causes of war ; and on the same date her Declaration with
reference to neutrals and letters of marque [No. 5, A].

On the 29th March, by an Order in Council, general reprisals
were granted against Russia.

(3) MARCH 29.— EMBARGO ON RUSSIAN VESSELS.

At the Court at Buckingham Palace,
the 29th Day of March 1854.

present,
The Queen's Most Excellent Majesty in Council.

It is this Day ordered by Her Majesty, by and with the Advice
of Her Privy Council, that no Ships or Vessels belonging to any

270 The Declaration of Paris

of Her Majesty's Subjects be permitted to enter and clear out
for any of the Ports of Russia, until further Order ; and Her
Majesty is further pleased to order, that a general Embargo or
Stop be made of all Russian Ships and Vessels whatsoever, now
within or which shall hereafter come into any of the Ports,
Harbours, or Roads within any of Her Majesty's Dominions,
together with all Persons and Effects on board the said Ships
or Vessels : Provided always, that nothing herein contained
shall extend to any Ships or Vessels specified or comprised in
a certain Order of Her Majesty in Council, dated this Twenty-
ninth Day of March, for exempting from Capture or Detention
Russian Vessels under special Circumstances ; and Her Majesty
is pleased further to order, and it is hereby ordered, that the
utmost Care be taken for the Preservation of all and every Part
of the Cargoes on board any of the said Ships or Vessels, so that
no Damage or Embezzlement whatever be sustained.

And the Right Honourable the Lords Commissioners of
Her Majesty's Treasury, the Lords Commissioners of the Ad-
miralty, and the Lord Warden of the Cinque Ports are to give
the necessary Directions herein as to them may respectively
appertain.

C. C. Greville.

(4) MARCH 29.— EXEMPTING CERTAIN RUSSIAN VESSELS
FROM CAPTURE.

At the Court at Buckingham Palace,
the 29th Day of March 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Her Majesty, being compelled to declare War against His
Imperial Majesty the Emperor of All the Russias, and being
desirous to lessen as much as possible the Evils thereof, is pleased,
by and with the Advice of Her Privy Council, to order, and it
is hereby ordered, that Russian Merchant Vessels, in any Ports
or Places within Her Majesty's Dominions, shall be allowed
until the Tenth Day of May next. Six Weeks from the Date
hereof, for loading their Cargoes and departing from such Ports
or Places ; and that such Russian Merchant Vessels, if met at
Sea by any of Her Majesty's Ships, shall be permitted to con-
tinue their Voyage, if on Examination of their Papers it shall
appear that their Cargoes were taken on board before the Ex-
piration of the above Term : Provided, that nothing herein

Proclamations and Orders in Council 271

contained shall extend or be taken to extend to Russian Vessels
having on board any Officer in the Military or Naval Service of
the Enemy, or any Article prohibited or contraband of War, or
any Despatch of or to the Russian Government.

And it is hereby further ordered by Her Majesty, by and with
the Advice of Her Privy Council as aforesaid, that any Russian
Merchant Vessel which, prior to the Date of this Order, shall
have sailed from any Foreign Port bound for any Port or Place
in Her Majesty's Dominions, shall be permitted to enter such
Port or Place and to discharge her Cargo, and afterwards forth-
with to depart without Molestation, and that any such Vessel,
if met at Sea by any of Her Majesty's Ships, shall be permitted
to continue her Voyage to any Port not blockaded.

And the Right Honourable the Lords Commissioners of Her
Majesty's Treasury, the Lords Commissioners of the Admiralty,
and the Lord Warden of the Cinque Ports, are to give the neces-
sary Directions herein as to them may respectively appertain.

C. C. Geeville.

(5) APRIL 7.— EXTENDING ORDER No. 4 TO
INDIA AND THE COLONIES.

At the Court at Buckingham Palace,
the 7th Day of April 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Her Majesty being compelled to declare War against His
Imperial Majesty the Emperor of All the Russias, and being
desirous to lessen as much as possible the Evils thereof, is
pleased, by and with the Advice of Her Privy Council, to order,
and it is hereby ordered, that Russian Merchant Vessels which,
at the Time of the Publication of this Order, shall be in any Ports
or Places in Her Majesty's Indian Territories under the Govern-
ment of the East India Company, or within any of Her Majesty's
Foreign or Colonial Possessions, shall be allowed Thirty Days
from the Time of the Publication of this Order in such Indian
Territories, or Foreign or Colonial Possession, for loading their
Cargoes and departing from such Ports or Places ; and that such
Russian Merchant Vessels, if met at Sea by any of Her Majesty's
Ships, shall be permitted to continue their Voyage if, on Examina-
tion of their Papers, it shall appear that their Cargoes were
taken on board before the Expiration of the above Term ; pro-
vided that nothing herein contained shall extend, or be taken

272 The Declaration of Paris

to extend, to Russian Vessels having on board any Officer in
the Military or Naval Service of the Enemy, or any Article pro-
hibited or contraband of War, or any Despatch of or to the
Russian Government.

And it is hereby further ordered by Her Majesty, by and
with the Advice of Her Privy Council as aforesaid, that any
Russian Merchant Vessel which, prior to the Twenty-ninth Day
of March now last past, shall have sailed from any Foreign
Port, bound for any Port or Place in any of Her Majesty's
Indian Territories, or Foreign or Colonial Possessions, shall be
permitted to enter such Port or Place, and to discharge her
Cargo, and afterwards forthwith to depart without Molestation ;
and that any such Vessel, if met at Sea by any of Her Majesty's
Ships, shall be permitted to continue her Voyage to any Port
not blockaded.

-■^i And the Right Honourable the Lords Commissioners of Her
Majesty's Treasury, the Lords Commissioners of the Admiralty,
and Her Majesty's Principal Secretary of State for War and the
Colonies, the Right Honourable the Commissioners for the
Affairs of India, and all Governors, Officers, and Authorities
whom it may concern, in Her Majesty's East Indian, Foreign,
and Colonial Possessions, are to give the necessary Directions
herein as to them may respectively appertain.

C. C. Greville.

(6) APRIL 7.— EMBARGO ON RUSSIAN VESSELS IN
CHANNEL ISLANDS AND ISLE OF MAN.

At the Court at Buckingham Palace,
the 7th Day of April 1854.

present.
The Queen's Most Excellent Majesty in Council.

It is this Day ordered by Her Majesty, by and with the Advice
of Her Privy Council, that no Ships or Vessels belonging to any
of Her Majesty's Subjects be permitted to enter and clear out
for any of the Ports of Russia until further Order ; and Her
Majesty is further pleased to order, that a general Embargo or
Stop be made of all Russian Ships and Vessels whatsoever now
within or which shall hereafter come into any of the Ports,
Harbours, or Roads, within Her Majesty's Islands of Jersey,
Guernsey, Alderney, and Sark, and the Isle of Man, together
with all Persons and Effects on board the said Ships or Vessels :
Provided always, that nothing herein contained shall extend

Proclamations and Orders in Council 273

to any Ships or Vessels specified or comprised in a certain
Order of Her Majesty in Council, dated the Twenty-ninth Day
of March last, for exempting from Capture or Detention Russian
Vessels under special Circumstances ; and Her Majesty is pleased
further to order, and it is hereby ordered, that the utmost Care
be taken for the Preservation of all and every Part of the
Cargoes on board any of the said Ships or Vessels, so that no
Damage or Embezzlement whatever be sustained.

And the Lieutenant-Governors of Her Majesty's Islands of
Jersey, Guernsey, Alderney, and Sark, and of the Isle of Man»
for the Time being, are to give the necessary Directions herein
as to them may respectively appertain, and to return an Account
of their Proceedings to this Board.

C. C. Greville.

(7) APRIL 11.— PERMITTING EXPORT OF CERTAIN
PROHIBITED ARTICLES.

At the Council Chamber, Whitehall,
the 11th Day of April 1854.

By the Lords of Her Majesty's Most Honourable
Privy Council.

The Lords of the Council having taken into consideration cer-
tain Applications for Leave to export Arms, Ammunition, Military
and Naval Stores, &c., being Articles of which the Exportation
is prohibited by Her Majesty's Proclamation of February 18th,
1854 : their Lordships are pleased to order, and it is hereby
ordered, that Permission should be granted by the Lords Com-
missioners of Her Majesty's Treasury to export the Articles so
prohibited, to be carried Coastwise to Ports in the United King-
dom, and likewise to all Places in North and South America,
except the Russian Possessions in North America ; to the Coast
of Africa, West of the Straits of Gibraltar, and round the South
and East Coast of Africa ; to the whole Coast of Asia not within
the Mediterranean Sea or the Persian Gulf, and not being Part
of the Russian Territories ; to the whole of Australia, and to
all British Colonies within the Limits aforesaid, upon taking a
Bond from the Persons exporting such prohibited Articles that
they shall be landed and entered at the Port of Destination ;
and that all further Permission to export such Articles to other
Parts of the World be only granted upon Application to the
Lords of the Council at this Board.

C. C. Greville.
18

274 The Declaration of Paris

(8) APRIL 16.— IN FURTHERANCE OF THE DECLARATION
TO THE NEUTRALS. [No. 6 A.]

At the Court at Windsor,
the 15th Day of April 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Whereas Her Majesty was graciously pleased, on the Twenty-
eighth Day of March last, to issue Her Royal Declaration in the
following Terms :

Her Majesty the Queen of the United Kingdom of Great
Britain and Ireland, having been compelled to take up
Arms in support of an Ally, is desirous of rendering the
War as little onerous as possible to the Powers with whom
she remains at Peace.

To preserve the Commerce of Neutrals from all un-
necessary Obstruction, Her Majesty is willing, for the
Present, to waive a Part of the Belligerent Rights apper-
taining to Her by the Law of Nations.

It is impossible for Her Majesty to forego the Exercise
of Her Right of seizing Articles Contraband of War, and of
preventing Neutrals from bearing the Enemy's Despatches,
and She must maintain the Right of a Belligerent to prevent
Neutrals from breaking any effective Blockade which may
be established with an adequate Force against the Enemy's
Forts, Harbours, or Coasts.

But Her Majesty will waive the Right of seizing Enemy's
property laden on board a neutral Vessel unless it be Con-
traband of War.

It is not Her Majesty's Intention to claim the Confisca-
tion of neutral Property, not being Contraband of War,
found on board Enemy's Ships ; and Her Majesty further
declares, that being anxious to lessen as much as possible
the Evils of War, and to restrict its Operations to the
regularly organised Forces of the Country, it is not Her
present Intention to issue Letters of Marque for the com-
missioning of Privateers.

Now it is this Day ordered, by and with the Advice of Her
Privy Council, that all Vessels under a neutral or friendly Flag,
being neutral or friendly Property, shall be permitted to import
into any Port or Place in Her Majesty's Dominions all Goods
and Merchandise whatsoever, to whomsoever the same may
belong ; and to export from any Port or Place in Her Majesty's
Dominions to any Port not blockaded any Cargo or Goods,

Proclamations and Orders in Council 275

not being Contraband of War, or not requiring a special Per-
mission, to whomsoever the same may belong.

And Her Majesty is further pleased, by and with the Advice
of Her Privy Council, to order, and it is hereby further ordered,
that, save and except only as aforesaid, all the Subjects of Her
Majesty and the Subjects or Citizens of any neutral or friendly
State shall and may, during and notwithstanding the present
Hostilities with Russia, freely trade with all Ports and Places
wheresoever situate which shall not be in a State of Blockade,
save and except that no British Vessel shall under any Circum-
stances whatsoever, either under or by virtue of this Order or
otherwise, be permitted or empowered to enter or communicate
with any Port or Place which shall belong to or be in the
Possession or Occupation of Her Majesty's Enemies.

And the Right Honourable the Lords Commissioners of Her
Majesty's Treasury, the Lords Commissioners of the Admiralty,
the Lord Warden of the Cinque Ports, and Her Majesty's
Principal Secretary of State for War and the Colonies, are to
give the necessary Directions herein as to them may respectively
appertain.

C. C. Greville.

(9) APRIL 15.— EXTENDING ORDER NO. 4 TO THE 16TH MAY.

At the Court at Windsor,
the 15th Day of April 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Whereas by an Order of Her Majesty in Council of the Twenty-
ninth of March last, it was amongst other things ordered, " that
any Russian Merchant Vessel which prior to the Date of this
Order shall have sailed from any Foreign Port, bound for any
Port or Place in Her Majesty's Dominions, shall be permitted
to enter such Port or Place and to discharge her Cargo, and after-
wards forthwith to depart without Molestation, and that any
such Vessel, if met at Sea by any of Her Majesty's Ships, shall
be permitted to continue her Voyage to any Port not blockaded " :
And whereas Her Majesty, by and with the Advice of Her
said Council, is now pleased to alter and extend such Part of the
said Order : It is hereby ordered, by and with such Advice as
aforesaid, as follows ; that is to say, — That any Russian Mer-
chant Vessel which, prior to the Fifteenth Day of May One

276 The Declaration of Paris

thousand eight hundred and fifty-four, shall have sailed from
any Port of Russia, situated either in or upon the Shores or
Coasts of the Baltic Sea or of the White Sea, bound for any
Port or Place in Her Majesty's Dominions, shall be permitted
to enter such last-mentioned Port or Place, and to discharge
her Cargo, and afterwards forthwith to depart without Molesta-
tion ; and that any such Vessel, if met at Sea by any of Her
Majesty's Ships, shall be permitted to continue her Voyage to
any Port not blockaded.

And Her Majesty is pleased, by and with the Advice afore-
said, further to order, and it is hereby further ordered, that in
all other respects Her Majesty's aforesaid Order in Council, of
the Twenty-ninth Day of March last, shall be and remain in full
Force, Effect, and Operation.

And the Right Honourable the Lords Conamissioners of Her
Majesty's Treasury, the Lords Commissioners of the Admiralty,
and the Lord Warden of the Cinque Ports, are to give the neces-
sary Directions herein as to them may respectively appertain.

C. C. Greville.

(10) APRIL 16.— PROHIBITING EXPORT OF ARMS
FROM MALTA AND GIBRALTAR.

At the Court at Windsor,
the 15th Day of April 1854.

PRESENT,

The Queen's Most Excellent Majesty in Council.

Whereas it has appeared expedient and necessary to Her
Majesty, by and with the Advice of Her Privy Council, by reason
of the Hostilities now subsisting between Herself and His Imperial
Majesty the Emperor of All the Russias, to prohibit the Goods
herein-after mentioned to be exported from the Island of Malta
and its Dependencies, except as herein-after provided :

Her Majesty is pleased, by and with the Advice of Her Privy
Council aforesaid, to order, and it is hereby ordered, that from
and after the Publication of this Order in the said Island, all
Arms, Ammunition, and Gunpowder, Military and Naval Stores,
and the following Articles, being Articles deemed capable of being
converted into or made useful in increasing the Quantity of
Military or Naval Stores ; that is to say. Marine Engines, Screw
Propellers, Paddle Wheels, Cylinders, Cranks, Shafts, Boilers,
Tubes for Boilers, Boiler Plates, Fire-bars, and every Article,

Proclamations and Orders in Council 277

or any other component Part of an Engine or Boiler, or any
Article whatsoever which is, can, or may become applicable for
the Manufacture of Marine Machinery, shall be and the same are
hereby prohibited to be exported from the said Island of Malta
and its Dependencies, except with the Licence of the Governor
or other Officer administering the Government thereof for that
Purpose first had and obtained.

And the Most Noble the Duke of Newcastle, One of Her
Majesty's Principal Secretaries of State, is to give the necessary
Directions herein accordingly.

C. C. Greville.

An Order similar to the above was also issued prohibiting
the Exportation of Arms, &c., from the " Town and Garrison
of Gibraltar."

(II) LIMITING PROCLAMATION OF 18TH FEBRUARY
[NO. (1)] TO CERTAIN ARTICLES.

At the Council Chamber, Whitehall,
the 24th Day of April 1854.

By the Lords of Her Majesty's Most Honourable
Privy Council.

The Lords of the Council, having taken into consideration
certain Applications for Leave to export various Articles of
which the Exportation is prohibited by Her Majesty's Pro-
clamation of the 18th February 1854, are pleased to order,
and it is hereby ordered, that the Officers of Her Majesty's
Customs do not hereafter prevent the Export of any Articles,
except only —

Gunpowder, Saltpetre, and Brimstone ;

Arms and Ammunition ;

Marine Engines and Boilers, and the component Parts
thereof.

And that such last-named Articles be prohibited from Export
only when destined to any Place in Europe North of Dunkirk
or to any Place in the Mediterranean Sea East of Malta ; and
that the Officers of Her Majesty's Customs do permit the Export
of the said enumerated Articles to any other Part of the World,
upon taking, from the Persons exporting the same, a Bond that
they shall be landed and entered at the Port of Destination.

Whereof the Lords Commissioners of Her Majesty's Treasury,

278 The Declaration of Paris

and Officers of Her Majesty's Customs, and all other Persons
whom it may concern, are to take Notice, and govern them-
selves accordingly.

C. C. Greville.

(12) November 30, 1854. — Prohibiting the export of lead, nitrate

of soda, blue lias, Portland cement, and any article used
in the manufacture of marine cement.

(13) January 2, 1855. — Rescinding the Order of Nov. 30 pro-

hibiting the export of blue lias, Portland cement, and
any article used in marine cement.

(14) August 7, 1855. — Prohibiting the export of sulphate of

potash, muriate of potash.

(15) August 7, 1855. — Prohibiting the export of rivet iron,

angle iron, round bars, rivets, strips of iron, sheet plate
iron, low moor plates.

(16) August 28, 1855. — Granting leave to export certain articles,

hitherto prohibited, to places east of Malta, with the
exception of gunpowder, saltpetre, brimstone, nitrate
of soda, sulphate of potash, muriate of potash, arms
and ammunition of every kind, including lead.

(17) August 30, 1855. — Amending in certain details Order No. 15

relative to the export of iron.

(18) August 30, 1855. — [Probably in lieu of No. 15 as amended.]

Prohibiting the export of rivet iron, angle iron, rivets,
strips of iron, low moor and bowling plates, sheet plate
iron exceeding J inch, round bars of from f- to |-inch
diameter.

(19) September 20, 1855. — Rescinding Order No. 16, with the

exception of gunpowder, saltpetre, brimstone, sulphate
of potash, muriate of potash, arms and ammunition.

(20) September 20, 1855. — Prohibiting the export of chlorate of

potash.

(21) November 1, 1855. — Prohibiting the export, to all foreign

countries except British possessions, of saltpetre, nitrate
of soda, sulphate of potash, muriate of potash, chlorate
of potash.

(22) December 27, 1855. — Prohibiting the export to Her

Majesty's colonies and plantations in North America,
including the West Indian Islands and all foreign
countries, of saltpetre, nitrate of soda, sulphate of
potash, muriate of potash.

Proclamations and Orders in Council 279

(23) December 28, 1855. — Rescinding the prohibition to export

chlorate of potash.

(24) April 9, 1856.— Revoking Order No. 3.

(25) April 9, 1856. — Revoking Order No. 6.

(26) April 9, 1856. — Taking off all prohibitions on the exporta-

tion of arms, ammunition, etc.

(27 and 28) April 9, 1856.— Revoking Order No. 10 (Malta and
Gibraltar).

(29) FEBRUARY 8, 1855.— PROCLAMATION DECLARING AS
TRAITORS ALL BRITISH SUBJECTS WHO SHALL ASSIST
HER MAJESTY'S ENEMIES.

By the Queen — ^A Proclamation.

Victoria R.

Whereas information has been received that certain acts
of a highly treasonable nature have been, or are about to be,
done or attempted by certain British subjects adhering to the
Queen's enemies, either within Her Majesty's dominions, or
in parts beyond the seas ; such as building, or aiding and assist-
ing in building, or equipping, ships of war, providing stores, or
tackling, arms, and ammunition, for such ships, or manufactur-
ing or fitting, or aiding, or assisting in manufacturing or fitting,
steam machinery, either for such ships or for other warlike
purposes ; or by entering into contracts, engagements, or agree-
ments for some of the aforesaid purposes, or otherwise adhering
to, aiding, assisting, or abetting, the Queen's enemies in parts
beyond the seas, in levying or carrying on war against Her
Majesty : now. Her Majesty, by this Her Royal Proclamation,
doth warn all such persons engaging in any such treasonable
designs or attempts as aforesaid, or otherwise adhering to,
assisting, aiding, or abetting the Queen's enemies, that they will
be liable to be apprehended and dealt with as traitors, and
will be proceeded against with the utmost rigour of the law.

Given at our Court at Windsor, this eighth day of February,
in the year of our Lord One thousand eight hundred
and fifty-five, and in the eighteenth year of our reign.

God save the Queen.

(30) April 28, 1856. — Proclamation of peace.

280 The Declaration of Paris

Instructimis to the Fleets.
A.— ENGLISH.

INSTRUCTIONS FOR THE COMMANDERS OF H.M.'S SHIPS AND
VESSELS OF WAR AS TO THE DISPOSAL OF CAPTURED

VESSELS.

I. The Commanders of Her Majesty's Ships and Vessels of
War shall send all Ships, Vessels, and Goods which they shall
seize and take, into such Port within Her Majesty's Dominions
as shall be most convenient for them, in order to have the same
legally adjudged in the High Court of Admiralty of England,
or in some other Admiralty Court lawfully authorised to take
cognizance of matters of Prize.

II. After such Ships, Vessels, and Goods (save as to Ships
of War) shall have been taken into any such Port, the Captor
or one of his Chief Officers or some other person present at the
capture, shall bring or send as soon as possibly may be, three
or four of the principal persons belonging to the captured
Ship or Vessel (two of whom shall always if possible be either
the Master, Supercargo, Mate or Boatswain) before the Judge
of the High Court of Admiralty of England, his Surrogate or
the Judge of some other Admiralty Court within the British
Dominions lawfully authorised, or others commissioned for
that purpose as aforesaid, all such Books, Papers, Passes, Sea
Briefs, Charter Parties, Bills of Lading, Cockets, Letters, and
other Documents and Writings whatsoever as shall be delivered
up, or found on board any such Ship or Vessel ; and the Captor
or one of his Chief Officers or some other person who was present
at the capture, and saw the said Papers and Writings delivered
up, or otherwise found on board at the time of the Capture,
shall make Oath that the said Papers and Writings are brought
and delivered in as they were received and taken without any
Fraud, Addition, Subduction, Alteration or Embezzlement what-
ever, or otherwise shall account for the same upon Oath to the
satisfaction of the Court.

III. All Ships, Vessels, Goods, Wares, Merchandises and
other Effects (save as to Ships of War) so captured as aforesaid
shall immediately upon being brought into Port, be delivered over
into the custody of the Marshall or other duly qualified Officer
of the High Court of Admiralty of England, or other Court of

Instructions to the Fleets 281

Admiralty commissioned as aforesaid, or in the absence of any
such Officer into the custody of the Collector, Comptroller, or
other principal Officer of the Customs or Navigation Laws, and
such Ships, Vessels, Goods, Wares, Merchandise and Effects
shall be kept and preserved, and no part thereof shall be sold,
spoiled, wasted or diminished, and the bulk thereof shall not be
broken (save only in case of urgent necessity or by Decree of
the Court,) until final judgement shall have been given in the
said Court of Admiralty touching and concerning the same.

IV. If any Ships or Vessels belonging to Her Majesty or Her
Subjects or to any of Her Allies or their Subjects shall be found
in distress by being in Flight, set upon, or Captured by the
Enemy, or by reason of any other Accident, the Commanders
of Her Majesty's Ships and Vessels of War shall use their best
endeavours and give aid and succour, and to the utmost of
their power labour to recapture and free the same from the
Enemy or such other distress.

V. The Commanders of Her Majesty's Ships and Vessels of
War shall not ransom or agree to ransom or quit or set at liberty
any Ship or Vessel, Goods or Wares, Merchandises, or other
Effects belonging to the Enemy, which shall have been seized
and taken by them, save only in case of urgent necessity.

VI. The Commanders of Her Majesty's Ships and Vessels of
War shall carry all persons taken on board of any captured
Men of War or other Ships or Vessels to Ports at which there
are or shall be established Depots for the reception of Prisoners
of War, and shall there deliver them over to such persons as
shall be duly authorised to receive and take charge of them ;
and no such Commander or other Officer shall presume, upon
any pretence whatever, to land, release, or deliver over any
such persons at any other place to any other person or in any
other manner than as aforesaid.

VII. The Commanders of Her Majesty's Ships and Vessels of
War shall not until further orders capture, detain or molest any
Ship or Vessel belonging to any subject or citizen of any State
in amity with Her Majesty solely by reason of Enemy's Goods
being laden on board her, nor shall they, until further orders,
capture, detain or molest any Goods, Wares, Merchandises, and
Effects laden on board the same solely by reason of their belong-
ing to the Enemy.

VIII. The Commanders of Her Majesty's Ships and Vessels
of War shall seize, detain, and Capture all Ships and Vessels
laden wholly or in part with Arms, Ammunition, Naval or
Military Stores, Officers, Troops, Seamen, and Despatches, or
any other Contraband of War, which is destined for the use

282 The Declaration of Paris

of the Enemy, and shall send such Ships or Vessels, and con-
traband (except as hereinafter mentioned) into some Port
within Her Majesty's Dominions for adjudication before the
High Court of Admiralty of England, or some other Court of
Admiralty duly authorised to take cognizance thereof; pro-
vided, that if any such Ships, Vessels, or Contraband be owned
by the Subjects of France, the same shall be taken into some
Port of France for adjudication.

IX. The Commanders of Her Majesty's Ships and Vessels
of War shall seize all Ships and Vessels and the Goods, Mer-
chandise, and Effects laden therein to whomseover belonging,
that shall be found attempting to Violate any Blockade of the
Ports, Harbours, or Coasts of the Enemy, and shall send them
(except as hereinafter excepted) into some Port within Her
Majesty's Dominions for adjudication before the High Court of
Admiralty duly commissioned to take cognizance thereof ; pro-
vided, that if such Ships or Vessels be owned by Subjects of
France the same shall be taken into some Port of France for
adjudication.

X. In case Her Majesty shall declare any Ports, Harbours,
or coasts to be in a state of Blockade, the Commanders of Her
Majesty's Ships and Vessels of War are hereby enjoined to stop
all Neutral Vessels, which they shall meet at Sea, destined to
the said Ports, Harbours, or coasts, and if they shall appear to
be ignorant of the existence of the said Blockade, and have
no Contraband of War on board, they shall turn them away,
apprising them that the said Ports, Harbours, or Coasts are in
a state of Blockade, and shall write a Notice to that effect upon
one or more of the Principal Ship's Papers ; and if any neutral
Ship or Vessel, which shall appear to have been so warned, or to
have been otherwise informed of the existence of the Blockade,
or to have sailed from her last Port after it may reasonably
be supposed that notification of the Blockade had been made
public there, shall yet be found attempting or intending to
violate such Blockade, such Vessel shall be seized, and sent
into some Port within Her Majesty's Dominions, for legal adjudi-
cation before the High Court of Admiralty of England, or some
other Court duly authorised to take cognizance thereof; pro-
vided, that if such Ship or Vessel be owned by Subjects of France,
the same shall be taken into some Port of France for adjudica-
tion. And if any neutral Ship or Vessel be found coming out
of any blockaded Port which she shall previously have entered
in violation of such Blockade, or if she shall have any Goods
or Merchandise on board laden after knowledge of the Blockade,
such Ships or Vessel, and the Goods, Wares, Merchandises, and

Instructions to the Fleets 283

other Effects on board the same shall in like manner be seized
and sent in for adjudication ; provided that, if such Ship or
Vessel be owned by the Subjects of France, she shall be taken
into some Port of France for adjudication. But any neutral
Ship or Vessel coming out of any such blockaded Port, in
ballast, or having only Goods or Merchandise on board laden
before the knowledge of the Blockade, shall be suffered to pass
except there be other grounds for detaining her, and a Notice
and Warning shall be written upon one or more of the
Principal Ship's Papers prohibiting such Vessel from again
attempting to enter such Port during the existence of the
blockade.

B.— FRENCH.

INSTRUCTIONS ADRESSfiES PAR SON EXCELLENCE LE MIN-
ISTRE SECRETAIRE D'fiTAT AU DfiPARTEMENT DE LA
MARINE ET DES COLONIES A MM. LES OFFICIERS GfiNfiR-
AUX, SUPfiRIEURS ET AUTRES, COMMANDANT LES ES-
CADRES ET LES BATIMENTS DE SA MAJESTfi IMPfiRIALE.

Paris, le 31 Mars 1854.
Messieurs,

Par une circulaire en date du 28 de ce mois, je vous ai fait
connaitre que la Russie s'etait constituee vis-a-vis de la France
et de I'Angleterre dans un etat de guerre dont la responsabilit^
lui appartient tout entiere [No. 3 (F. 2)].

Vous trouverez ci-jointe la declaration faite k ce sujet au
S6nat et au Corps legislatif par ordre de I'Empereur.

Je vous notifie aujourd'hui les intentions de Sa Majeste
relativement aux devoirs nouveaux qui en decoulent pour vous,
ind6pendamment du concours que vous aurez a preter aux
operations militaires proprement dites, suivant les instructions
speciales que je vous adresserai ou qui vous parviendront a ce
sujet par la voie hierarchique.

Voici done la ligne de conduite que vous aurez a tenir par
suite de cette declaration :

1. Des ce moment vous etes requis de courir sus a tous les
batiments de guerre de Sa Majest6 I'empereur de Russie ou k
tous corsaires armes sous son pavilion, et a vous en emparer par
la force des armes ; vous aurez egalement a courir sus et a
capturer tous les batiments de commerce russes, ainsi que leurs
cargaisons, que vous rencontrerez en mer ou dans les ports et
rades de I'ennemi, sous les exceptions suivantes :

Un delai de six semaines, qui court du 27 de ce mois au 9 mai
prochain inclusivement, ay ant €t€ accord^ aux batiments de

284 The Declaration of Paris

commerce russes pour sortir des ports fran9ais, soit qu'ils s'y
trouvent en ce moment ou qu'ils y entrent ulterieurement, vous
n'arreterez aucun de ces batiments pendant ledit delai, et vous
laisserez egalement continuer leur navigation a ceux de ces
batiments qui etabliraient par leurs papiers de bord qu'etant
partis dans les limites du delai accorde, ils se rendent directe-
ment a leur port de destination et qu'ils n'ont pu encore y
parvenir. Les memes exceptions s'appliqueront aux navires
russes sortis des ports de I'Angleterre ou qui seraient destines
pour ces ports.

2. Vous n'apporterez aucun obstacle a la peche coti^re, meme
sur les cotes de I'ennemi ; mais vous veillerez a ce que cette
faveur, dictee par un interet d'humanit6, n'entraine aucun abus
prejudiciable aux operations militaires et maritimes. Si vous
etes employes dans les eaux de la mer Blanche, vous laisserez
aussi subsister sans interruption, et sauf repression en cas d'abus,
r^change de poisson frais, de vivres, d'ustensiles et d'agres de
peche qui se fait habituellement entre les paysans des c6tes
russes de la province d' Archangel et les pecheurs des c6tes
du Finnmarken norvegien.

3. Vous n'arreterez pas non plus les batiments russes pourvus
d'un sauf-conduit ou licence, soit du gouvernement imperial,
soit du gouvernement britannique, ou, enfin, du gouvernement
ottoman. Vous trouverez ci- joint un modele de la forme
adoptee pour les licences ou sauf-conduits fran9ais. Je vouis
communiquerai ulterieurement un modele des actes analogues
des gouvernements anglais et ottoman.

Vous vous assurerez que les actes qui voUs seront pr^sent^s
sont sinceres et que les conditions en ont ete rigoureusement
observees ; en cas de soup5ons sur leur sincerite ou d'inexe-
cution de leurs conditions, vous etes autoris6s a saisir le batiment
qui en serait porteur.

4. Vous vous abstiendrez d'exercer aucun acte d'hostilit6
dans les ports ou dans les eaux territoriales des puissances
neutres, et vous considererez les eaux territoriales comme
s'^tendant k une port^e de canon au dela de la laisse de basse
mer ; vous vous abstiendrez egalement de toute capture ou
poursuite hostile dans les ports et eaux territoriales des puis-
sances alliees, a moins que vous n'en soyez requis ou que vous
n'y soyez autoris6s par I'officier de la puissance territoriale
charge du commandement le plus voisin.

5. L'6tat de guerre interrompant les relations de commerce
entre les sujets des puissances belligerantes, vous aurez a arreter
non seulement les batiments marchands nationaux, mais encore
les batiments marchands des puissances alliees, qui, sans une

Instructions to the Fleets 285

permission ou licence sp6ciale, tenteraient d'enfreindre cette
interdiction, ou qui, plus coupables encore, chercheraient a
violer un blocus ou s'engageraient dans un transport de troupes,
de depeches officielles ou de contrebande de guerre pour le
compte ou a destination de I'ennemi.

6. Les neutres 6tant autorises par le droit des gens a continuer
librement leur commerce avec les puissances belligerantes, vous
n'arreterez les batiments neutres que dans les cas suivants :

1° S'ils tentaient de violer un blocus ;

2° S'ils transportaient, pour le compte ou a destination de
I'ennemi, des objets de contrebande de guerre, des depeches
officielles ou des troupes de terre ou de mer. Dans ces divers
cas, le batiment et la cargaison sont confiscables, sauf lorsque
la contrebande de guerre ne forme pas les trois quarts du
chargement, auquel cas les objets de contrebande sont seuls
sujets a confiscation.

7. Tout blocus, pour etre respecte, devra etre effectif, c'est-
a-dire maintenu par des forces suffisantes pour qu'il y ait
danger imminent de pen^trer dans les ports investis. La
violation du blocus resulte aussi bien de la tentative de penetrer
dans le lieu bloque que de la tentative d'en sortir apr^s la declara-
tion du blocus, a moins, dans ce dernier cas, que ce ne soit sur
lest ou avec un chargement pris avant le blocus ou dans le delai
fixe par le commandant du blocus, delai qui devra tou jours etre
suffisant pour proteger la navigation et le commerce de bonne foi.

Un blocus n'est d'ailleurs cense connu d'un batiment qui se
dirige vers un port bloque qu'apr^s que la notification speciale
en a ete inscrite sur ses registres ou papiers de bord par I'un des
batiments de guerre formant le blocus ; . et c'est une formality
que vous ne devrez point negliger de faire remplir toutes les
fois que vous serez engages dans une operation de ce genre.

8. La contrebande de guerre se compose des objets suivants,
lorsqu'ils sont destines a I'ennemi, savoir :

Bouches et armes a feu, armes blanches, projectiles, poudre,
salpetre, soufre, objets d'equipement, de campement et de
harnachement militaires, et tous instruments quelconques
fabriques a I'usage de la guerre.

9. Sauf la verification relative au commerce illicite dont je
vous ai indique le caractere, vous n'avez point a examiner la
propriete du chargement des navires neutres : le pavilion couvre
la marchandise, et des lors la propriety ennemie chargee a bord
n'est point confiscable ; toutefois, je crois devoir vous informer
que, par une faveur speciale que Sa Majeste a entenduxonceder
aux neutres dans le cours de cette guerre, d'accord avec Sa
Majeste la reine, son auguste alliee, les propri^t^s des sujets

286 The Declaration of Paris

allies ou neutres trouvees k bord des navires ennemis seront
exemptes de confiscation.

10. Pour I'application de ces principes, la nationality des
maisons de commerce doit se determiner d'apres le lieu ou
elles sont etablies ; mais la nationalite des batiments ne derive
pas seulement de celle de leurs proprietaires, mais encore de
leur droit legitime au pavilion qui les couvre.

11. En cas de detresse d'un batiment national ou alli^ ou
en cas de capture par I'ennemi, vous devrez lui porter toute
aide et assistance ou vous efforcer d'en operer la recousse :
I'intention de Sa Majeste est que ce sauvetage ou cette recousse
ne donne lieu a aucun droit sur le batiment secouru ou recous.
Dans le cas ou vous reprendriez sur I'ennemi un batiment neutre,
vous etes autorises a considerer ce batiment comme ennemi
s'il est reste plus de vingt-quatre heures en la possession de
I'ennemi, a moins de circonstances exceptionnelles dont Sa
Majeste se reserve I'appreciation. Si le batiment n'est pas
reste pendant vingt-quatre heures au pouvoir de I'ennemi, vous
le relacherez purement et simplement.

12. Si vous rencontrez un corsaire sous pavilion russe, vous
le saisirez et le traiterez comme tout autre batiment marchand
ennemi ; mais Sa Majeste ayant, d'accord avec ses augustes
allies, renonce quant a present a la delivrance de lettres de
marque, est en droit d'attendre que I'armement et la conduite
des corsaires ennemis soient renfermes strictement dans les
limites les plus restreintes du droit des gens, et vous aurez k
verifier avec rigueur s'ils ne rentrent pas dans I'un des cas prevus
par la loi du 10 avril 1825 sur la piraterie, dont vous trouverez
ci- joint un extrait, afin que vous puissiez, le cas echeant, en faire
I'application.

13. Pour remplir les devoirs resultant des indications qui
precedent, vous aurez a exercer le droit de visite. Bien que
ce droit soit illimite en temps de guerre quant aux parages, je
vous recommande cependant expressement de ne I'exercer que
dans les parages et dans les circonstances ou vous auriez des
motifs fondes de supposer qu'il pent amener la saisie du bati-
ment visits.

Quant a la former vous vous tiendrez, autant que possible,
hors de la portee de canon. Vous enverrez a bord un canot
dont I'officier montera sur le navire a visiter, accompagne de
deux ou trois hommes seulement, et se bornera a verifier, d'apres
les papiers de bord, la nationalite ainsi que la nature du bati-
ment et du chargement, et k reconnaitre si le batiment est
engag^ dans un commerce illicite.

L'examen des papiers de bord est d'autaut plus important

Instructions to the Fleets 287

que, d'apres noire legislation, ces papiers peuvent seuls servir
au jugement ult^rieur sur la validity ou I'invalidit^ de la prise.

14. Vous ne visiterez point les batiments qui se trouveront
sous le convoi d'un navire de guerre alli6 ou neutre, et vous
vous bornerez k r6clamer du commandant du convoi une liste des
batiments places sous sa protection avec la declaration ^crite
qu'ils n'appartiennent pas a I'ennemi et ne sont engages dans
aucun commerce illicite. Si cependant vous aviez lieu de
soup9onner que la religion du commandant du convoi a ^te
surprise, vous communiqueriez vos soup9ons a cet officier, qui
proc^derait seul a la visite des batiments suspectes.

15. Si la visite ne determine pas la saisie du batiment,
I'officier qui en aura ^te charg^ devra seulement la constater
sur les papiers du bord ; si au contraire elle determine la saisie,
I'officier visiteur devra :

1° S'emparer de tous les papiers de bord ;

2° Dresser un invejitaire ;

8° Mettre a bord un equipage pour la conduite de la prise.

16. En cas de prise d'un corsaire ou d'un pirate, vous pro-
c^derez de la meme mani^re ; mais dans le cas de capture d'un
batiment de guerre, vous vous bornerez a la constater sur votre
journal, et vous pourvoirez a la conduite de la mani^re la plus
conforme a la securite des equipages auxquels vous la confierez.

Les lettres officielles et particuli^res trouvees a bord des
batiments captures devront m'etre adressees sans delai.

17. Toute prise doit etre jug^e, et il ne vous est pas permis
de consentir a un traite de ran9on, et dans ce cas meme I'acte
de ranyon, r^dig^ conform6ment aux modeles joint aux pr^sentes
instructions, devra etre soumis a la juridiction qui est ou sera
chargee en France du jugement des prises.

18. II a ete convenu entre le Gouvernement de Sa Majeste
Imperiale et celui de Sa Majeste Britannique :

1° Que le produit net des prises faites en commun sera
divise en autant de parts qu'il y aura d'hommes embarqu6s
sur les batiments engages dans Taction, sans tenir compte des
grades, et que la repartition des sommes revenant aux batiments
respectifs sera faite par les soins de chaque gouvernement et
d'apres la loi du pays ;

2° Que, quant aux batiments en vue au moment de la capture,
et dont la presence pourrait encourager le capteur et intimider
I'ennemi, il leur serait accord^ une part dans la prise.

Le mode du jugement des prises n'ayant pas encore 6t6
T6g\6 d6finitivement entre Sa Majeste I'Empereur et son auguste
alliee, je ne suis point en mesure de vous fixer aujourd'hui d'une
mani^re positive sur la marche qui devra etre suivie.

288 The Declaration of Paris

Cependant les dispositions ci-apres me paraissent devoir etre
adoptees :

1° Par exception, le juge competent sera le juge du capture
lorsqu'il s'agira de batiments fran9ais qui se seraient mis dans le
cas d'etre arretes par des croiseurs anglais, pour violation ou
tentative de violation de blocus ou pour transport de contre-
bande de guerre, et vice versa lorsqu'il s'agira de batiments
anglais qui auraient ete arretes par des croiseurs frangais ;

2° Pour les batiments captures autres que ceux des marines
fran9aise ou anglaise, la regie que le juge competent de la prise
est le juge du capteur reprendra son empire ;

3° Si la capture a lieu par suite d'une action commune et
sous un commandement superieur, le pavilion du commandant
sup6rieur determinera la nationality du juge ;

4° Si la capture est faite par un croiseur de I'une des deux
nations alliees en presence et avec I'appui materiel ou moral
d'un croiseur de I'autre, le juge de la prise sera celui du capteur.

19. Lorsque le jugement devra appartenir a la juridiction
franyaise, vous conduirez la prise dans le port de France le plus
rapproche, le plus accessible et le plus sur, ou dans le port de
la possession fran9aise la plus voisine ; mais si des circonstances
de force majeure ne vous permettaient pas de conduire la prise
en France ou dans une possession fran9aise, vous pourrez la
conduire dans un port anglais ou ottoman oti se trouverait un
consul de Sa Majeste Imperiale, avec lequel vous vous concerterez
sur la destination ulterieure de la prise.

Lorsque, au contraire, vous serez dans le cas de remettre a
la juridiction anglaise une prise faite ou amenee par vous, vous
la conduirez dans le port anglais le plus proche, et vous vous
entendrez, soit avec le consul de Sa Majeste Imperiale, soit avec
I'autorite locale, pour vous en dessaisir d'une maniere reguliere.

Ces diverses dispositions devront naturellement etre observees
par les officiers conducteurs de prises.

20. Vous ne devrez distraire du bord aucun des individus
qui montent le batiment capture, s'il s'agit d'un corsaire ou
d'un batiment marchand ; mais les femmes, les enfants et
toutes les personnes ^trang^res au metier des armes ou k la
marine ne devront, en aucun cas, etre traites comme prisonniers
de guerre, et seront libres de debarquer dans le premier port
oil le batiment abordera. S'il s'agit d'un batiment de guerre,
et sauf la meme exception, vous pourrez, si vous le jugez utile,
transborder une partie de I'equipage, et vous conduirez les
prisonniers soit dans un port militaire de France, soit dans
tout autre port qui pourra etre ulterieurement design^ comme
lieu de depot pour les prisonniers de guerre.

Convention as to Joint Captures

289

21. Je n'ai pas besoin de vous recommander, en terminant,
de concerter votre action avec les batiments de Sa Majesty
Britannique ou de la Porte Ottomane toutes les fois que vous
en trouverez I'occasion. Je suis persuade que vous ne perdrez
jamais de vue raccord complet qui existe entre les trois gouverne-
ments, et que vous ne negligerez rien de ce qui pourrait le
fortifier et resserrer les liens qui les unissent.

Independamment des documents auxquels se referent les
presentes instructions, vous trouverez ci-apres divers actes dont
les dispositions devront etre observees, sauf, bien entendu, en
ce qu'elles auraient de contraire aux regies qui precedent.

Recevez, messieurs, I'assurance de ma consideration tr^s-
distinguee.

Le ministre secretaire (VJ^tat de la marine et des colonies,
Theodore Ducos.

Convention between Great Britain and France relative to
Joint Captures, with Instructions to the Fleets,
May 10, 1854.

Her Majesty the Queen of
the United Kingdom of Great
Britain and Ireland, and His
Majesty the Emperor of the
French, being desirous to deter-
mine the jurisdiction to which
the adjudication of joint cap-
tures which may be made dur-
ing the course of the present
war by the naval forces of the
two nations shall belong, or of
captures which may be made
of merchant-vessels belonging
to subjects of either of the two
countries by the cruizers of the
other, and being desirous to
regulate at the same time the
mode of distribution of the
proceeds of joint captures,

Sa Majeste la Reine du Roy-
aume Uni de la Grande Bre-
tagne et d'lrlande, et Sa
Majeste I'Empereur des Fran-
9ais, voulant determiner la
juridiction a laquelle devra
appartenir le jugement des
prises qui, dans le cours de la
guerre actuelle, pourront etre
operees en commun par les
forces navales des deux nations,
ou des prises qui pourront etre
faits sur des navires marchands
appartenant aux sujets de I'un
des deux pays par les croiseurs
de I'autre, et voulant regler en
meme temps le mode de repar-
tition des produits des prises
effectuees en commun, out

290

The Declaration of Paris

have named as their Plenipo-
tentiaries for that purpose :

1. When a joint capture shall
be made by the naval forces of
the two countries, the adjudica-
tion thereof shall belong to the
jurisdiction of the country
whose flag shall have been
borne by the oJBficer having
the superior command in the
action.

2. When a capture shall be
made by a cruizer of either of
the two allied nations in the
presence and in the sight of
a cruizer of the other, such
cruizer having thus contributed
to the intimidation of the
enemy and encouragement of
the captor, the adjudication
thereof shall belong to the juris-
diction of the actual captor.

3. In case of the capture of a
merchant-vessel of one of the
two countries, the adjudication
of such capture shall always
belong to the jurisdiction of the
country of the captured vessel :
the cargo shall be dealt with, as
to the jurisdiction, in the same
manner as the vessel.

4. In case of condemnation
under the circumstances de-
scribed in the preceding
Articles :

(1) If the capture shall have
been made by vessels of the
two nations whilst acting in
conjunction, the net proceeds
of the prize, after deducting the
necessary expenses, shall be
divided into as many shares
as there were men on board
the capturing vessels, without
reference to rank, and the

nomm6 pour leurs Plenipoten-
tiaires a cet effet :

1. Lorsqu'une prise sera
faite en commun par les forces
navales des deux pays, le juge-
ment en appartiendra a la juri-
diction du pays dont le pavilion
aura et6 porte par I'officier qui
aura eu le commandement
sup^rieur dans Taction.

2. Lorsqu'une prise sera
faite par un croiseur de Tune
des deux nations alliees en
presence et en vue d'un croiseur
de I'autre, qui aura ainsi con-
tribue a intimider I'ennemi et
a encourager le capteur, le
jugement en appartiendra a la
juridiction du capteur efifectif.

3. En cas de capture d'un
batiment de la marine mar-
chande de I'un des deux pays,
le jugement en appartiendra
tou jours a la juridiction du
pays du batiment capture ; la
cargaison suivra, quant a la
juridiction, le sort du bati-
ment.

4. En cas de condamnation
dans les circonstances prevues
par les Articles precedents :

(1) Si la capture a ^t^ faite
par des batiments des deux
nations agissant en commun, le
produit net de la prise, deduc-
tion faite des d^penses neces-
saires, sera divise en autant de
parts qu'il y aura d'hommes
embarques sur les batiments
capteurs, sans tenir compte des
grades, et les parts revenant

Convention as to Joint Captures

291

shares belonging to the men
on board the vessels of the
Ally shall be paid and delivered
to such person as may be duly
authorized on behalf of the
allied Government to receive
the same ; and the distribution
of the amount belonging to
each vessel shall be made by
each Government according to
the laws and regulations of the
country.

(2) If the capture shall have
been made by cruizers of either
of the two allied nations in
the presence and in sight of a
cruizer of the other, the divi-
sion, the payment, and the
distribution of the net proceeds
of the prize, after deducting
the necessary expenses, shall
likewise be made in the manner
above mentioned.

(3) If a capture, made by
a cruizer of one of the two
countries, shall have been ad-
judicated by the Courts of the
other, the net proceeds of the
prize, after deducting the neces-
sary expenses, shall be made
over in the same manner to the
Government of the captor, to
be distributed according to its
laws and regulations.

5. The commanders of the
vessels of war of Their Majesties
shall, with regard to the send-
ing in and delivering up of
prizes, conform to the Instruc-
tions annexed to the present
Convention, and which the two
Governments reserve to them-
selves to modify by common
consent, if it should become
necessary.

aux hommes embarqu^s sur
les batiments de la nation
alli6e seront payees et delivrees
a la personne qui sera dument
autorisee par le Gouvernement
allie a les recevoir ; et la
repartition des sommes reve-
nant aux batiments respectifs
sera faite par les soins de
chaque Gouvernement suivant
les lois et r^glements du pays.

(2) Si la prise a ^t^ faite par
les croiseurs de I'une des deuk
nations alli^es en presence et
en vue d'un croiseur de I'autre,
le partage, le paiement, et la
repartition du produit net de
la prise, deduction faite des
depenses necessaires, auront
lieu egalement de la mani^re
indiquee ci-dessus.

(3) Si la prise, faite par un
croiseur de I'un des deux pays,
a ete jugee par les Tribunaux
de I'autre, le produit net de la
prise, deduction faite des de-
penses necessaires, seraremis de
la meme mani^re au Gouverne-
ment du capteur, pour etre
distribu6 conform^ment a ses
lois et r^glements.

5. Les commandants des
batiments de guerre de Leurs
Majest^s se conformeront, pour
la conduite et la remise des
prises, aux Instructions jointes
a la presente Convention, et
que les deux Gouvernements se
reservent de modifier, s'il y a
lieu, d'un commun accord.

292

The Declaration of Paris

6. When, in execution of the
present Convention, the valua-
tion of a captured vessel of war
shall be in question, the calcu-
lation shall be according to the
real value of the same ; and
the allied Government shall be
entitled to delegate one or more
competent officers to concur in
the valuation. In case of dis-
agreement, it shall be decided
by lot which officer shall have
the casting voice.

7. The crews of the captured
vessels shall be dealt with ac-
cording to the laws and regula-
tions of the country to which
the present Convention attri-
butes the adjudication of the
prize.

8. The present Convention
shall be ratified, and the rati-
fications shall be exchanged at
London within ten days from
this date, or sooner if possible.

6. Lorsque, pour I'execution
de la presente Convention, il y
aura lieu de proceder a I'estima-
tion d'un batiment de guerre
captur6, cette estimation por-
tera sur sa valeur effective ;
et le Gouvernement allie aura
la faculte de d^leguer un ou
plusieurs officiers competents
pour concourir a I'estimation.
En cas de desaccord, le sort
decidera quel officier devra
avoir la voix preponderante.

7. Les equipages des bati-
ments captures seront trait^s
suivant les lois et r^glements
du pays auquel la presente
Convention attribue le juge-
ment de la capture.

8. La presente Convention
sera ratifi^e, et les ratifications
en seront echangees a Londres
dans le delai de dix jours, ou
plus tot si faire se pent.

ANNEX TO THE CONVENTION. ANNEXE A LA CONVENTION.

INSTRUCTIONS to the Com-
manders of Ships of War
belonging to Her Majesty the
Queen of the United King-
dom of Great Britain and
Ireland and to His Majesty
the Emperor of the French.

You will find inclosed a copy
of a Convention which was
signed on the 10th instant
between Her Majesty the
Queen of the United Kingdom
of Great Britain and Ireland
and His Majesty the Emperor
of the French, regulating the
jurisdiction to which shall be-

INSTRUCTIONS pour les
Commandants des Bdtiments
de Guerre de Sa Majeste la
Reine du Royaume Uni de la
Grande Bretagne et d'lrlande
et de Sa Majeste VEmpereur
des Frangais.

Vous trouverez ci- joint copie
d'une Convention single le 10
de ce mois entre Sa Majeste la
Reine du Royaume Uni de la
Grande Bretagne et d'Irlande
et Sa Majeste I'Empereur des
Frangais, pour regler la juri-
diction a laquelle devra appar-
tenir le jugement des prises

Convention as to Joint Captures

298

long the adjudication of the
joint captures made by the
aUied naval forces, or of the
captures of merchant-vessels
belonging to the subjects of
either of the two countries
which shall be made by the
cruisers of the other, as likewise
the mode of distribution of the
proceeds of such joint captures.

In order to ensure the execu-
tion of this Convention, you
will conform yourself to the
following Instructions :

1. Whenever, in consequence
of a joint action, you are re-
quired to draw up the report or
proces-verbal of a capture, you
will take care to specify exactly
the names of the ships of war
present during the action, as
well as the names of their com-
manding officers, and, as far as
possible, the number of men
embarked on board those ships
at the commencement of the
action, without distinction of
rank.

You will deliver a copy of
that report or procds-verbal to
the officer of the allied Power
who shall have had the superior
command during the action,'
and you will conform yourself
to the instructions of that
officer as far as relates to the
measures to be taken for the
conduct and the adjudication
of the joint captures so made
under his command.

If the action has been com-
manded by an officer of your
nation, you will conform your-
self to the regulations of your
own country, and you will con-

operees en commun par les
forces navales alliees, ou faites
sur des navires marchands ap-
partenant aux sujects de I'un
des deux 6tats par les croiseurs
de I'autre, ainsi que le mode
de repartition du produit des
prises effectuees en commun.

Pour assurer I'ex^cution de
cette Convention, vous aurez a
vous conformer aux Instruc-
tions suivantes :

1. Lorsque, par suite d'une
action commune, vous serez
dans le cas de rediger le rapport
ou le proces-verbal d'une cap-
ture, vous aurez soin d'indiquer
avec exactitude les noms des
batiments de guerre presents
a Taction, ainsi que de leurs
commandants, et, autant que
possible, le nombre d'hommes
embarques a bord de ces bati-
ments au commencement de
Taction, sans distinction de
grades.

Vous remettrez une copie de
ce rapport ou proces-verbal a
Tofficier de la Puissance affile
qui aura eu le commandement
superieur dans Taction, et vous
vous conformerez aux instruc-
tions de cet officier en ce qui
concerne les mesures a prendre
pour la conduite et le jugement
des prises ainsi faites en com-
mun sous son commandement.

Si Taction a 6t6 command^e
par un officier de votre nation,
vous vous conformerez aux
r^glements de votre propre
pays, et vous vous bornerez k

294

The Declaration of Paris

fine yourself to handing over
to the highest officer in rank
of the allied Power who was
present during the action a
certified copy of the report or
of the proces-verbal which you
shall have drawn up.

2. When you shall have
effected a capture in presence
of, and in sight of, an allied
ship of war, you will mention
exactly, in the report which
you will draw up when the
capture is a ship of war, and in
the report or proces-verbal of
the capture when the prize is
a merchant- vessel, the number
of men on board your ship at
the commencement of the
action, without distinction of
rank, as well as the name of
the allied ship of war which
happened to be in sight, and,
if possible, the number of men
embarked on board that ship,
likewise without distinction of
rank. You will deliver a certi-
fied copy of your report or
proces-verbal to the commander
of that ship.

8. Whenever, in the case of
a violation of a blockade, of
the transport of contraband
articles, of land or sea troops
of the enemy, or of official
despatches from or for the
enemy, you find yourself under
the necessity of stopping and
seizing a merchant-vessel of
the allied nation, you will take
care to :

(1) Draw up a report (or
procts-verbal), stating the place,
the date, and the motive of the
arrest, the name of the vessel.

remettre k I'officier le plus
61eve en grade de la Puissance
alli^e, present k Paction, une
copie certifiee du rapport ou du
proces-verbal que vous aurez
redig6.

2. Lorsque vous aurez
eifectu6 une capture en pre-
sence et en vue d'un batiment
de guerre allie, vous mention-
nerez exactement dans le rap-
port que vous r6digerez, s'il
s'agit d'un batiment de guerre,
et dans le proces-verbal de
capture, s'il s'agit d'un bati-
ment de conunerce, le nombre
d'hommes que vous aviez k
bord au cominiencement de
Taction, sans distinction de
grades, ainsi que le nom du
batiment de guerre allie qui se
trouvait en vue, et, s'il est
possible, le nombre d'hommes
embarques a bord, egalement
sans distinction de grades.
Vous remettrez une copie certi-
fiee de votre rapport ou proces-
verbal au commandant de ce
batiment.

3. Lorsqu'en cas de viola-
tion de blocus, de transport
d'objets de contrabande, de
troupes de terre ou de mer
ennemies, ou de d6peches offi-
cielles de ou pour I'ennemi,
vous serez dans le cas d'arreter
et saisir un batiment de la
marine marchande du pays
allie, vous devrez :

( 1 ) Rediger un proces-verbal ,
enonyant le lieu, la date, et le
motif de I'arrestation, le nom
du batiment, celui du capitaine,

Convention as to Joint Captures

295

that of the captain, the number
of the crew ; and containing
besides an exact description of
the state of the vessel, and of
her cargo.

(2) Collect and place in a
sealed packet, after having
made an inventory of them,
all the ship's papers, such as
registers, passports, charter-
parties, bills of lading, invoices,
and other documents calcu-
lated to prove the nature and
the ownership of the vessel and
of her cargo.

(3) Place seals upon the
hatches.

(4) Place on board an officer,
with such number of men as
you may deem advisable, to
take charge of the vessel, and
to ensure its safe conduct.

(5) Send the vessel to the
nearest port belonging to the
Power whose flag it carried.

(6) Deliver up the vessel to
the authorities of the port to
which you shall have taken her,
together with a duplicate of
the report (or proces-verbal),
and of the inventory above-
mentioned, and with the sealed
packet containing the ship's
papers.

4. The officer who conducts
the captured vessel will procure
a receipt proving his having
delivered up the vessel, as well
as his having delivered the
sealed packet, and the dupli-
cate of the report (or proces-
verbal) and of the inventory
above-mentioned.

5. In case of distress, if the
captured vessel is not in a fit

le nombre des hommes de
I'^quipage ; et contenant en
outre la description exacte de
r^tat du navire, et de sa
cargaison.

(2) Reunir en un paquet
cachete, apr^s en avoir fait
I'inventaire, tous les papiers
de bord, tels que actes de
nationalit6 ou de propriety,
passeports, charte-parties, con-
naissements, factures, et autres
documents propres a constater
la nature et la propriete du
batiment et de la cargaison.

(3) Mettre les scelles sur les
6coutilles.

(4) Placer k bord un officier,
avec tel nombre d'hommes que
vous jugerez convenable, pour
prendre le batiment en charge,
et en assurer la conduite.

(5) Envoyer le batiment au
port le plus voisin de la Puis-
sance dont il portait le pavilion.

(6) Faire remettre le bati-
ment aux autorites du port ou
vous I'aurez fait conduire, avec
une expedition du proces-verbal
et de I'inventaire ci-dessus men-
tionnes, et avec le paquet
cachet6 contenant les papiers
de bord.

4. L'officier conducteur d'un
batiment captur6 se fera de-
livrer un re9u constatant la
remise qu'il en aura faite, ainsi
que la delivrance qu'il aura
faite du paquet cachete et de
I'exp^dition du proces-verbal
et de I'inventaire ci-dessus
mentionn^s.

5. En cas de d^tresse, si le
batiment capture est hors

296

The Declaration of Paris

state to continue its voyage,
the officer charged to conduct
to a port of the allied Power
a prize made on the merchant
service of that Power, may
enter a port of his own country
or a neutral port ; and he will
deliver his prize to the local
authority, if he enters a port
of his own country, and to the
Consul of the allied nation if
he enters a neutral port, with-
out prejudice to the ulterior
measures to be taken for the
adjudication of the prize. He
will take care, in that case, that
the report or proces-verbal, and
the inventory which he shall
have drawn up, as well as the
sealed packet containing the
ship's papers, be sent exactly
to the proper Court of adjudi-
cation.

6. You are not to consider
as prisoners of war, and you
will give free permission to
land, to all women, children,
and persons not belonging to
the military or maritime pro-
fession who shall be found on
board the captured vessels.

With this exception, and
those which your own security
may suggest, you will not per-
mit any person to be removed
from on board the vessel ; and
in all cases you will retain the
master, supercargo, and others
whose evidence may be essen-
tial to the adjudication of the
prize.

You will treat as prisoners
of war all persons whatever
who may be found on board
the enemy's vessels, with the

d'etat de continuer sa route,
I'officier charge de conduire
dans un port de la Puissance
alliee une prise faite sur la
marine marchande de cette
Puissance, pourra entrer dans
un port de son propre pays ou
dans un port neutre ; et 11
remettra sa prise a I'autorite
locale, s'il entre dans un port
de son pays, et au Consul de la
nation alliee s'il entre dans un
port neutre, sans prejudice des
mesures ulterieures a prendre
pour le jugement de la prise.
II veillera, dans ce cas, a ce que
le rapport ou proces-verbal et
I'inventaire qu'il aura r^diges,
ainsi que le paquet cachet^
contenant les papiers de bord,
soient envoyes exactement a
la juridiction chargee du juge-
ment.

6. Vous ne consid6rerez
point comme prisonniers, et
vous laisserez librement de-
barquer, les femmes, les enfants,
et les personnes Strangers au
metier des armes ouala marine,
qui se trouveront a bord des
batiments arretes.

Sauf cette exception et celles
que vous suggerera le soin de
votre surety, vous ne distrairez
aucun individu du bord ; dans
tous les cas, vous conserverez
a bord le capitaine, le subre-
cargue, et ceux dont le t^moi-
gnage serait essentiel pour le
jugement de la prise.

Vous traiterez comme prison-
niers de guerre, sauf I'excep-
tion ci-dessus indiqu^e au § 1,
tous les individus quelconques

Convention as to Joint Captures

297

exceptions above mentioned
in§l.

You will place no other re-
striction on the liberty of allied
or neutral subjects found on
board allied or neutral vessels,
than such as may be necessary
for the security of the vessel.

With respect to your own
countrymen, you will treat
them according to the general
instructions you have received,
and you will, in no case, deliver
them up to a foreign juris-
diction.

The persons who may have
been exceptionally removed
from the captured vessels shall
afterwards be sent back to their
own country, if they belong
to the allied nation ; if they
are neutrals or enemies, they
shall be treated as if they had
been found on board vessels
captured by you separately.

trouv^s k bord des batiments
ennemis.

Vous n'imposerez k la liberty
des sujets allies ou neutres,
trouves sur les batiments allies
ou neutres, d'autre restriction
que celle qui pourra etre n^ces-
saire pour la s^curit^ du bati-
ment.

Quant a vos nationaux, vous
les traiterez conformement aux
instructions g6n6rales dont vous
etes muni, et vous n'aurez, en
aucun cas, k les remettre a une
juridiction ^trang^re.

Les hommes distraits excep-
tionnellement du bord des bati-
ments captures, devront etre
ulterieurement renvoy^s dans
leur pays, s'ils appartiennent k
la nation alliee ; et s'ils sont
neutres ou ennemis, ils seront
traites comme s'ils se fussent
trouves sur des batiments cap-
tures par vous isolement.

FRENCH DECREE PROMULGATING THE CONVENTION.

Napoleon, par la grace de Dieu et la volont6 nationale,
Empereur des Fran^ais.

A tous presents et a venir, salut.

Sur le rapport de notre ministre secretaire d']Stat au d^-
partement des affaires etrang^res,

AvoNS decret£ et decretons ce qui suit :

article premier.

Une convention, suivie d'une annexe, ayant ^t^ conclue le
10 mai de la presente annee 1854, entre la France et le Royaume-
Uni de la Grande-Bretagne et d'Irlande, pour regler le mode de
jugement et de partage des prises faites dans le cours de la
presente guerre ; et les actes de ratification ayant 6t6 respective-
ment echanges le 20 du meme mois, ladite convention, dont
la teneur suit, recevra sa pleine et enti^re execution.
[Here follows the Convention.]

298 The Declaration of Paris

British Notifications of Blockades.^

1854

(1) 12th may 1854.

Letter from Senior Officer H.M.S. Amphion, Memel Roads,
informing the British Vice Consul that Riga, Libau and Windau
are strictly blockaded as from 15th May, sent as enclosure with
Senior Officer's Report dated 14th June 1854 to Vice Admiral
Sir Charles Napier.

Summary of Report. — In respect of neutral vessels captured
in attempting to violate the Baltic blockade, and sent to England
for adjudication, three points must be established before they
can be condemned as lawful prize : —

1. Effective blockade. This has been continually main-
tained.

2. Intention to violate blockade. This has been ascertained
by the course of the captured vessel in each case.

3. Knowledge of blockade.

Regarding the first point, I have the honour to inform you,
that since May 9th, when I was first entrusted with the blockade
of this coast (at which time I found H.M.S. Conflict and Cruizer
on the Station, which vessels had been blockading since April
20th) 2 ships have been ordered to cruize off the entrance of
the Gulf of Riga, a passage limited by the shoals to a breadth
of 3 miles, this entrance has never been left without one vessel.
. . . Under these orders 154 vessels have been warned off since
April 20th, though nearly all had passed through the Sound, and
only 4 had been detained for attempting to enter blockaded ports.
Residents in such ports had been officially notified of the exist-
ing blockade through the British Vice Consul at Memel.

(2) 13th JUNE 1854

Notifying despatch from Vice Admiral Dundas commanding
H.M.'s naval forces in the Black Sea, dated 1st June, announcing
blockade of the Danube by combined British and French naval
forces.

^ State Papers, vols, xliv., xlv.

British Notifications of Blockades 299

(3) 16a?H JinSTE 1864.

Notif jdng despatch from Vice Admiral Sir Charles Napier
commanding H.M.'s naval forces in the Baltic, dated 28th May,
announcing that Libau and Windau on the coast of Courland and
other ports etc. from Lat. 55° 53' N. to as far north as Cape
Dager Ort, including Riga, Pernau and all other ports etc. in
the Gulf of Riga " were then in a state of blockade by a com-
petent force " :

that all ports etc. eastward from Cape Dager Ort as far as
Helsingfors and Sveaborg on the coast of Finland : continuing
westward, ports including the Aland archipelago : from thence
northward, Tornea and all intermediate Russian ports etc. in
the Gulf of Bothnia " are and were then in a state of strict
blockade by a competent force."

(4) 12th JULY 1854.

Notifying despatch from Sir Charles Napier commanding
H.M.'s naval forces in the Baltic announcing that on and from
26th June " a strict and effective blockade was actually estab-
lished by combined British and French naval forces of ports in
the Gulf of Finland : that a complete blockade of Cronstadt and
St Petersburg had been effected by the combined fleets from
the same date : thence, passing westward, the line of blockade
included the whole coast of Esthonia and adjacent islands to
Ekholm Light."

(5) llTH AUGUST 1854.

Notifying further particulars of blockades of Russian Baltic
ports. " On being joined by the French squadron in the Gulf
of Finland on the 13th June the duties of blockading in that
Gulf and elsewhere were henceforward conjointly carried into
effect."

(6) 28th SEPTEMBER 1854.

Notifying strict blockade of all ports in the White Sea
including specially Archangel and Onega by a competent force
of the allied fleets.

(7) 3bd NOVEMBER 1854.

Notifying despatch from Sir Charles Napier announcing the
raising of the blockade of ports in the Gulf of Bothnia.

300 The Declaration of Paris

1855

(8) 3bd march 1865.

Notifying despatch from Rear Admiral Sir Edmund Lyons
commanding H.M.'s naval forces in the Black Sea, dated 11th
February, announcing that the ports in the Black Sea and in
the Sea of Azov were strictly blockaded by a competent force
of the allied fleets, and that certain ports in the Crimea would
remain open and free from blockade.

(9) 10th march 1855.

Notifying despatch from Sir Edmund Lyons announcing
raising of blockade of the Danube.

(10) 27th APRIL 1855.

Notifying despatch from officer commanding H.M.'s squadron,
dated 19th April, announcing that Libau on the coast of Cour-
land was placed on that date in a state of strict blockade by a
competent British force in the name of the allies ; and that on
the same day all Russian ports in the Baltic, including the
entrance to the Gulf of Riga, were also placed in a state of strict
blockade by a competent force.

(11) 16th may 1855.

Notifying despatch from Rear Admiral Dundas commanding
H.M.'s ships in the Baltic, of a strict blockade by an effective
force of ports in the Gulf of Finland in the name of the allies.

(12) 21ST JUNE 1855.

Notifying despatch " with reference to the blockade of the
Gulf of Finland already established on 28th April last," announ-
cing ports in the Gulf of Finland, especially Cronstadt, were
strictly blockaded by a competent force on the 27th May in
the name of the allies.

(13) 29th JUNE 1855.

Notifying despatch from French and British admirals
commanding the allied naval forces announcing that all ports
on the coast of Finland were on the 15th June placed in a state
of strict blockade by a competent force of the allied fleets.

Correspondence Relating to the Blockades 301

(14) 17th JULY 1855.

Notifying despatch from Senior Officer of White Sea Squadron
announcing a strict blockade in the name of the allies by a
competent force of ports on the White Sea, especially Archangel
and Onega.

(15) 27th JULY 1855.

Notifying despatch from Rear- Admiral Dundas announcing
joint notification of strict blockade of Baltic ports and all
Russian ports in the Gulf of Bothnia, by a competent force
of the allied fleets.

(16) 29th NOVEMBER 1855.

Notifjdng despatch from Senior Officer White Sea Squadron
raising blockade of the White Sea on 9th October.

1856

BRITISH NOTIFICATION OF THE RAISING OF THE BRITISH
AND FRENCH BLOCKADES OF RUSSIAN PORTS, PENDING
THE RATIFICATIONS OF THE TREATY OF PEACE.

Foreign Office, April 8, 1856.

Notice is hereby given, that pending the ratification of the
Treaty of Peace, an armistice by sea, as well as by land, has been
agreed upon between Great Britain and her Allies, on the one
part, and Russia on the other ; and that consequently, orders
have been given for immediately raising the blockade of Russian
ports.

Correspondence Relating to the Blockades.

A. — M. Drouyn de Lhuys to Count Walewski.

Paris, le 19 Avril, 1854.

M. LE COMTE,

Le blocus devant naturellement etre notifie en meme temps
pour les Gouvernements Franyais et Anglais je vous prie
d'engager Lord Clarendon a me faire parvenir le plus prompte-
ment possible par I'intermediare de Lord Cowley les avis

302 The Declaration of Paris

relatifs aux blocus effectues par les forces navales Britanniques,
afin que la notification en puisse etre inseree le meme jour
dans le Moniteur et dans la Gazette de Londres. De mon cot^,
j'aurai soin de transmettre a Lord Clarendon par votre inter-
mediare I'avis des blocus effectues par les forces navales
Fran9aises.

Quelle que soit la marine qui ^tablisse le blocus, je pense
qu'il doit tou jours etre sense avoir ete effectue par les forces
navales combinees au nom des deux Gouvernements allies ; il
me parait essentiel que les termes de la notification soient
explicites a cet egard et pour prevenir les difficultes auxquelles
pourraient donner lieu les blocus des golfes et des c6tes je crois
aussi convenable d'ins6rer dans toutes les notifications outre
les noms des principaux ports ces termes : " et autres ports,

rades, havres, ou criques du Golfe de ou de la cote de

depuis le cap ou la pointe jusqu'au cap ou la point e ."

II ne peut echapper a Lord Clarendon qu'il y a toujours avantage
a ^viter une discussion de principes lorsque les doutes peuvent
etre prdvenus par le simple choix des termes. J'ai soumis
cette observation a Lord Cowley qui I'a trouvee d'autant plus
fondee que d'apres la jurisprudence Anglaise il ne lui paraissait
pas certain qu'en cas de blocus du Golfe de Finland par exemple
sans autre designation, la navigation entre deux ports du golfe
put etre considere comme violant le blocus.

II est dans nos usages de transmettre les notifications de
blocus au corps diplomatique accredite a Paris et je pense
que cet usage existe aussi en Angleterre veuillez bien M. le Comte
vous en assurer aupres de Lord Clarendon, et, s'il en est ainsi
lui proposer d'adopter pour ces sortes de notifications le projet
de circulaire ci- joint ou tout autre qu'il jugerait convenable
d'y substituer pour que ces sortes de communications aient lieu
de la part des deux Gouvernements dans les termes identiques.

Le Ministre d' Angleterre a Copenhague a notifie officielle-
ment au Gouvernement Danois I'intention ou se trouve TAmiral
Napier de bloquer le Golfe de Finlande. Je pense que cette
notification ne saurait remplacer celle qui doit suivre I'insertion
de I'avis du blocus dans les journaux officiels, et je me crois fond6
a la considerer comme ayant ete faite sans instructions. D'apres
une r^gle qui a prevalu dans le droit des gens moderne et que
pour notre part nous avons observee scrupuleusement dans les
mesures de represailles que nous avons eu a employer contre
le Mexique et Bu6nos-Ayres, il doit^tre laisse aux batiments
neutres, en cas d'etablissement de blocus un delai suffisant
pour quitter le port sur lest ou avec leur chargements : cette
regie a ete rappelee aux commandants de nos batiments de guerre

Correspondence Relating to the Blockades 303

par les instructions gen^rales dont ils ont 6t6 munis. Je vous
prie M. le Comte d'engager Lord Clarendon a faire donner aux
commandants Anglais des ordres dans le meme sens si les in-
structions generates qui ont du leur etre adressees ne sont pas
deja explicates sur ce point.

Je vous rappellerai a cette occasion M. le Comte le desir que
je vous ai exprime par ma depeche du de ce mois,

d'avoir communication des instructions generales des croiseurs
Anglais et de connaitre I'opinion du Cabinet Anglais sur les
instructions adresses a nos croiseurs. Je re9ois encore journelle-
ment de la part des Puissances neutres des demandes d'explica-
tions sur les principes adoptes par nous en mati^re de droit
maritime et je ne puis y repondre convenablement qu'apres
etre fixe sur les principes admis par le Gouvernement Anglais.
Je vous prie M. le Comte de renouveler vos demarches aupr^s
de Lord Clarendon pour etre mis en mesure de me transmettre
promptement que j 'attend a cet egard.

B. — Memorandum by M. Drouyn de Lhuys — Views of
THE French Government on the Blockade of the
Black Sea.

le 29 Juin, 1854.

MM. les Vice Amiraux Hamelin et Dundas pensent que le
blocus des ports Russes de la Mer Noire ne peut-etre rendu
effectif que par I'adoption des deux mesures suivants.

La premiere que serait prise par le Gouvernement Ottoman
aurait pour objet de defendre I'exp^dition (clear out) de tous les
navires neutres de Constantinople pour les possessions Russes
de la Mer Noire, et d'empecher tous navires neutres destines
pour les possessions Russes de quitter le Bosphore au moyen de
deux batiments de guerre Turcs et d'un ou plusiers batiments
allies stationes a I'entree de la Mer Noire avec ordre d'inscrire
sur les papiers de bord de ces navires la defense de se rendre
dans les ports Russes. La seconde mesure consisterait a etablir
deux croisieres de batiments-a-vapeur de deux escadres alliees,
I'une devant le golfe occidental entre le Danube et le Cap
Chersonese et la seconde devant le golfe oriental entre le Cap
Chersonese et la Baie de Gelendjik. Les 19 vaisseaux de ligne
des escadres combinees feraient, en outre, de frequentes appari-
tions dans les golfes de mani^re a rendre le blocus aussi effectif
que possible. Le Ministre des Affaires Etrangeres qui avait ete
consults sur la premiere partie de cette proposition par M. le
Ministre de la Marine en consequence d'une depeche de M. le

304 The Declaration of Paris

Vice Amiral Hamelin a repondu le 26 Juin qu'elle ne lui
paraissait pas admissible d'apres les principes proclames par
les 2 Gouvernements allies au commencement de la guerre,
attendu qu'elle avait evidemment pour objet de remplacer un
blocus effectif par une interdiction de commerce que la Porte
elle-meme ne pourrait prononcer sans violer ses engagements
conventionnels avec les Puissance maritimes. Rapprochee de la
2™® partie de la proposition, qui tend a I'etablissement d'un
blocus effectif, la premiere partie n' off re plus le caractere absolu
qui semblait devoir la faire repousser sans reserve : elle a
seulement pour I'objet d'ajouter a I'efficacite de blocus, et dans
cette mesure elle pent etre adoptee en partie.

En effet, si Ton regarde comme utile de bloquer tous les ports
Russes de la Mer Noire, meme ceux qui sont sans importance
pour le commerce d'exportation et qui ne sont frequentes que
par des caboteurs, et si Ton admet que les croisieres projetees
peuvent constituer suivant les termes de nos declarations une
force suffisante pour qu'il y ait danger de penetrer dans les ports
declares en ^tat de blocus, il est inutile de reclamer de la Porte
aucune mesure d'interdiction commerciale ; mais il pent etre
avantageux, surtout au point de vue de la jurisprudence Anglaise,
de poster des croiseurs Turcs ou allies a 1' entree de la Mer Noire
afin de notifier a tous les navires entrant I'existence du blocus
effectif des ports Russes, au moyen d'une inscription sur les
papiers de bord. Les batiments qui auront re9u ce 1' avertisse-
ment ne sauraient s'ils sont rencontres aux environs des ports
bloques en reclamer un second et pourront evidemment etre
saisis comme ayant cherche a violer un blocus. II va sans
dire que MM. les Amiraux devront faire la notification du blocus
dans les termes convenus entre les deux Gouvernements, c'est
a dire en designant nominativement les ports ainsi que les points
nautiques extremes des rades, havres, ou criques compris dans
le blocus.

[For Lord Clarendon's reply to M. Drouyn de Lhuys' letter
of 19th April, see Addendum on p. 440.]

Neutral Legislation as to Navigation during War 305

Neutral Legislation as to Navigation during the War,

A.— BRAZIL.

DECREE OF H.M. THE EMPEROR OF BRAZIL
CONCERNING PRIVATEERS.

Rio de Janeiro, 17 May, 1854.
I have the honour to inform Your Excellency that His Imperial
Majesty, attentive to the commercial interests of his subjects,
and desirous to observe a strict neutrality during the war
which unhappily exists between Great Britain and France on
the one side and Russia on the other, as far as possible to
conform to the principles of international law and the Imperial
legislation, has decided to adopt the following resolutions : —

1. That no privateer flying the flag of any belligerent
Power may be armed, provisioned, or admitted with its prizes
into the ports of our empire.

2. That no Brazilian subject shall take part in the arming
of privateers nor take any action opposed to the duties of a
strict neutrality.

I officially inform Your Excellency of the said resolutions
and I have to request Your Excellency to send suitable instruc-
tions in order that they may be understood and executed by
the authorities of the Empire and those that are subordinate
to you.

Permit me to take the opportunity of repeating to Your
Excellency the assurances of my perfect esteem and distinguished
consideration.

Antonio Paulino Limpo de Abreu.

To H.E. o Sr. Jose Maria da Silva Paranihos.

B.— BREMEN.

ORDINANCE OF THE SENATE OF BREMEN, DECLARING
THE NEUTRALITY OF BREMEN IN THE WAR BETWEEN
CERTAIN EUROPEAN POWERS; AND PROHIBITING THE
EXPORTATION OF ARTICLES CONTRABAND OF WAR.—
BREMEN, APRIL 12, 1854.

As a state of war now exists between several of the Great
European Powers, and the commencement of hostilities by sea
and land has been declared, the Senate, in order, under existing

306 The Declaration of Paris

circumstances, to secure Bremen property from loss and damage
as much as possible, and to maintain the neutral position of
Bremen against all infringement, sees itself called upon to
require the attention of all, but particularly of those engaged
in commerce, and also of shipowners, so that they, in their
commercial transactions to and from places belonging to a
belligerent State, be it in a state of blockade or not, in order
to avoid their own loss, do abstain from all and every violation
of those obligations imposed on them in time of war by the
general law of nations and by Bremen State Treaties.

Notwithstanding that the Senate feels assured that the
reference to their duties towards friendly Powers and their own
State will be sufficient to deter the citizens of Bremen in future,
as it has done hitherto, from every undertaking opposed to
the principles of public law, yet it hereby at the same time,
without prejudice to any other measures that may become
necessary for the maintenance of the neutrality of the State
of Bremen, enjoins the following regulations for general
observation : —

1. The exportation is prohibited of all articles deemed
contraband of war by the law of nations, or by the existing
Bremen State Treaties ; and particularly of munitions of war,
gunpowder, musket and cannon balls, percussion caps, sulphur,
and saltpetre, ordnance and arms of every description, and
generally of all articles immediately serving for purposes of
war, to the territory of any of the belligerent Powers by land
or water, and whether under Bremen or foreign flag.

The transgression of this prohibition will be followed, in
addition to the confiscation of the articles in question, by fine
or imprisonment according to circumstances.

2. On all shipments of goods to the belligerent States the
articles are to be correctly specified ; the term " merchandize "
or any general designation is inadmissible.

3. No Bremen vessel shall be allowed to carry double sets
of ship's papers, or to sail under a foreign flag.

4. The legal obligation previously imposed on the sworn
shipbrokers that they shall give notice of the shipment of
articles considered as contraband of war, as also in regard to
the genuineness of the ship's documents and ship's papers,
remain unaltered in validity, and the observance thereof is
hereby again expressly enjoined on them.

Neutral Legislation as to Navigation during War 307

ORDINANCE OF THE SENATE OF BREMEN, PROHIBITING THE
ADMISSION, FITTING-OUT, AND PROVISIONING OF PRIVA-
TEERS IN THE PORTS OF BREMEN, DURING WAR
BETWEEN CERTAIN EUROPEAN POWERS.— BREMEN,
APRIL 28, 1854.

The Governments of Great Britain and France having
officially announced to the Senate that they have agreed to
make no use, until further notice, of the right possessed by
them as belligerent Powers to grant letters of marque during
the continuance of the war carried on by them, therefore, the
Senate, considering the obligations imposed on neutral States
by a just reciprocity, finds itself called upon hereby to ordain,
for general observance, as follows : —

1. All citizens of the State of Bremen are forbidden, under
peril of heavy punishment, in anywise to engage in privateer-
ing, either by fitting out privateers themselves, or by affording
them indirect aid.

2. The proper authorities are directed not to allow, under
any circumstances, the fitting out and provisioning of privateers,
be they under whatever flag or letters of marque they may,
in any port belonging to the State of Bremen, and not to permit
any such privateers, and any prizes which they may have with
them, to enter a Bremen port, unless in cases of clearly-proved
distress at sea.

Resolved in the Assembly of the Senate, Bremen, the 28th
of April, and published on the 29th of April, 1854.

C— DENMARK.

NOTICE OF THE DANISH GOVERNMENT RELATIVE TO THE
RENEWED APPLICATION OF THE ORDINANCE OF MAY 4,
1803, AS TO HOW TRADERS AND SEAMEN ARE TO CON-
DUCT THEMSELVES IN CASE OF A WAR BETWEEN
FOREIGN MARITIME POWERS, ETC.

Copenhagen, April 20, 1854.
On the 11th inst. His Majesty the King graciously appointed
the Undersigned Ministers to remind His Majesty's subjects of
the laws contained in the Ordinance of the 4th of May 1803
relating to the conduct to be observed by traders and navigators
in case of a war between foreign naval Powers ; and likewise
to announce that, on account of the impending war, the said
Ordinance will come again into operation in all and every part
of His Majesty's realm from the day on which this notice is
there made known.

308 The Declaration of Paris

As it has also been deemed necessary to particularize more
especially several regulations in that Ordinance, His Majesty
has been pleased to give his subjects some interim instructions
to enable them conscientiously to perform their duties ; to
observe as well the general conditions of the Treaty, which
in the event of the threatened war come into force, as also the
Declaration of Neutrality communicated by order of His Majesty
to several foreign Powers, especially the belligerents in the
annexed translated circular, in the same manner as it will be
by His Majesty and his Government.

The Undersigned Ministry have, therefore, to announce and
enforce the following by Royal Authority :

Section 1. In regard to Article I. of the Ordinance of 4th
May 1803, it is hereby determined that the Royal Latin sea-
passes ordered therein must be procured for all voyages, ex-
cepting the inland navigation in the Baltic, Cattegat, and the
German Ocean, or between Danish or neutral ports in the Baltic
and Cattegat.

Although the Royal Latin sea-pass is only valid for one
voyage, to wit, from the time of the departure of the vessel
for her home port after receipt thereof, until her return
(Ordinance, 4th May 1803, Article XII.), it may, nevertheless,
be presumed that it will be renewed by indorsement, according
to circumstances.

Under the designations of Colleges (Boards) made use of in
the Ordinance of 4th May 1803, Article IX., the respective
Ministries are now to be understood ; so that when Article
XIV. names the General Land Economy and Commercial
Board, the Ministry for Foreign Affairs is meant ; in like
manner, the Finance Ministry is to be understood by the West
Indian Guinea Revenue and General Board of Customs alluded
to in the same paragraph.

For the present the Royal Latin sea-pass is furnished by
the Minister of Foreign Affairs gratis.

Section 2. In addition to the articles specified in the
Ordinance of 4th May 1803, all manufactured articles which
may be directly converted into articles of warfare, are now
deemed contraband of war.

Should any change or addition, with respect to contraband
of war, be necessary in consequence of any special stipulations
between His Majesty the King and foreign Powers, the Ministry
for Foreign Affairs reserves to itself the right of giving further
particulars after having received His Majesty's instructions.

Section 3. In consequence of the conditions of the existing
Treaties (Treaty with Great Britain, of 11th July 1670, Art. III.,

Neutral Legislation as to Navigation during War 309

4
and explanatory Article of July, — 1780, and agreeable to the

contents of the Royal Declaration of Neutrality (Article I.)), it

is illegal for His Majesty's subjects to take any kind of service

whatever, either by land or in any of the Government ships

belonging to the eventual belligerent Powers ; and especially

to pilot the vessels of war or transports of those Powers beyond

the pilots' districts of the Danish Kingdom.

The above is made known for the instruction and guidance

of all whom it may or doth concern.

Bluhme.

ORDINANCE OF THE KING OF DENMARK, RELATING TO THE
CONDUCT OF TRADERS AND MARINERS WHEN WAR
BREAKS OUT BETWEEN FOREIGN MARITIME POWERS.

Copenhagen, May 4, 1803.

We, Christian the Seventh, by the Grace of God, King of Den-
mark and Norway, the Vandals and Goths, Duke of Schleswig-
Holstein, Stormarn, Ditmarsh, and Oldenburg.

Make known, that although by sundry orders, before pub-
lished, we have established the laws and regulations to be
observed by our trading and maritime subjects, when war takes
place between foreign naval Powers, we, nevertheless, deem it
necessary, under existing circumstances, to compile under one
Ordinance, and to particularise the details of the above-named
orders, which are to serve as a guide to all whom they may
concern, in order that, on the one hand, the basis thereof may
be generally understood, by which it is at all times our intention
to maintain the rights of our trading and maritime subjects ;
on the other hand, that no one may be able to exculpate himself
on the ground of ignorance of the duties devolving on him as a
Danish subject, in the aforesaid case. It is, therefore, our most
gracious will that the following Regulations only and alone shall
in future be observed and strictly followed by all and every one
desirous of participating in the privileges to which the neutrality
of our flag entitles them in times of war, in their legal tradings
and navigation ; for this purpose we have hereby rescinded and
annulled all former regulations made for the guidance of our
subjects in this respect ; therefore we direct and command as
follows : —

Art. I. Those of our trading and maritime subjects who are
desirous of despatching any ship belonging to them across the
seas to any of the foreign places to which, according to the
circumstances, the effects of the War may extend, are bound,

310 The Declaration of Paris

under due observance of all the instructions and rules, herein-
after appointed, to furnish themselves with a royal Latin sea-
pass, also the necessary papers and documents for a lawful
despatch of the vessel. For this purpose, on the outbreak of
hostilities between foreign Powers, it will be further determined
and made public for what places it will be deemed necessary
for ships to be furnished with our Latin sea-passes.

II. The pass cannot be obtained before the owner of the
vessel for which it is required has procured the necessary ship's
certificate, as evidence of his legal right to the ship.

III. No one may obtain a ship's certificate who is not our
subject, either born in our kingdom and possessions, or before
the commencement of hostilities between any of the Naval
Powers of Europe, has been in possession of all the rights of
citizenship, either in our own or other neutral States. In all
cases the owner of the vessel for which the certificate is required
shall be resident in some part of our kingdom or possession.

IV. Anyone who, according to the preceding article, is
entitled to obtain a ship's certificate, shall, in order to procure
the same, present himself before the magistrate or other autho-
rity of the place to which the ship belongs, or where the greater
part of the owners are resident, and there either the whole, or
at least the chief owner, shall make oath, or by a written and
signed affidavit, swear that the ship belongs to him or them
(all being our subjects), and that the vessel for which the ship's
certificate is required has on board no contraband of war
destined to any of the belligerent Powers or their subjects.

V. No one may, on the breaking out of war, be allowed to
command any ship furnished with our royal sea-pass, who shall
have been born in the country of any of the Powers which are
at war, without he has obtained his rights of citizenship in our
kingdom and possession prior to the breaking out of hostilities.

VI. Every captain commanding a vessel furnished with our
royal sea-pass, must have obtained his citizenship in some part
of our kingdom or dominions. He is bound at all times to have
his bugerbrief (certificate of citizenship) with him on board. As
a surety that he will undertake nothing contrary to the tenor
of these, our regulations, he is bound, before his departure from
the port where he receives the pass, to make oath that, with
his consent, nothing shall be done whereby the pass and docu-
ments rendered to him might be misused. This affidavit shall
be delivered by the owner with his application for the pass ;
but should this, owing to the absence of the captain, not be
practicable, it must be announced by the owner, and our Consul
or Commercial Agent at the district where the captain then is

Neutral Legislation as to Navigation during War 811

shall be responsible that the captain makes such affidavit on
receipt of the pass :

VII. No supercargo, factor, clerk, or other ship's officer,
being a subject of the belligerent Powers, shall be on board of
such ships as shall be furnished with a royal Latin sea-pass.

VIII. Of the crew, including the mate, the half shall at all
times consist of seamen of our realm. Should it happen that
the crew at a foreign port should become incomplete, by deser-
tion, death, or sickness, in such a manner that the captain is
rendered incapable of fulfilling the commands contained in this
Article, it shall be lawful for him to ship as many foreigners,
but preferably the subjects of neutral Powers, as may be neces-
sary for the continuation of the voyage ; but in no case shall
the number of the subjects of the belligerent Powers on board
the ship be more than the third of the entire crew. Every
change in the crew, and the reasons thereof, shall be noted by
the master on his crew-list, and in every case be attested in
writing by our respective Consuls and Commissioners of Com-
merce, or their representatives, at the port into which the ship
enters ; such endorsement serving the master as justification in
all cases that may arise.

IX. In addition to the ship's documents, which are always
to be kept on board, the following also belong, exclusive of the
ship's certificate alluded to in Article II., viz., the ship's " biel
or bygnings brev " (builder's certificate) ; and in case he who had
the vessel built has since had her transferred to another owner,
then also " kiobebrevet or skiodet " (the purchase certificate or
transfer). These documents are to be sent in to the colleges or
authorities by the owner on applying for the pass, together with
the certificate to prove the ship's lawful right to the possession
of the pass :

The royal Latin sea-pass, with the requisite translations.

The maale-brev (measure-brief).

EquipageruUen or folkelisten (crew-list), duly attested by the
proper authorities.

Charter-parties and bills of lading of the cargo ; and, lastly,

Told and clarerings seddelen (Customs' clearance) from the
port where the cargo is shipped.

X. The maale-brev (measure-brief) shall be issued by the
authorities empowered to measure vessels in our kingdom.
Should any of our subjects purchase a vessel in a foreign port,
our Consul or Commercial Agent at that place shall be author-
ized to effect the ship's measurement, and furnish the master
with an interim measure-brief, which shall be deemed valid until
the ship arrives at any port of our kingdom, where she shall be

812 The Declaration of Paris

properly measured and branded, and a formal measure-brief pre-
pared, which shall afterwards always remain on board the ship.

XI. All and every one is prohibited, owners as well as
captains, to procure or have on board duplicate ship's papers,
or to carry a foreign flag, so long as they shall sail with the
papers and documents graciously furnished to them by us.

XII. Our royal Latin sea-pass is valid only for one voyage ;
to wit, from the time the ship, after the reception thereof, leaves
the home port, to the time of her arrival back again, provided
she shall not have come into the possession of any other person
by lawful sale, in which case the new owner shall obtain the
necessary passes and papers in his own name.

XIII. As according to the generally acknowledged principles,
the subjects of neutral Powers are not permitted to have goods
on board which may be deemed contraband of war, when des-
tined to the belligerent Powers or to their subjects, or which
may already belong to them, we hereby distinctly determine
what is to be understood as contraband of war, to prevent our
flag being misused for covering the carriage of such prohibited
goods, and in order that no one may be enabled to exculpate
himself on the plea of ignorance. The following articles, there-
fore, shall be looked upon and deemed by our subjects to be
contraband of war ; to wit, cannon, mortars, all sorts of weapons,
pistols, bombs, grenades, ball, guns, flints, matches, gunpowder,
saltpetre, brimstone, cuirasses, pikes, swords, belts, cartridge
boxes, saddles, and bridles, excepting such a quantity of these
articles as may be necessary for the defence of such vessel and
crew. Moreover, the positive obligations respecting the convey-
ance of prohibited goods and property in ships or vessels belonging
to our subjects, entered into by special stipulations with foreign
Powers, are to remain in full force in all their parts, for which
purpose owners shall be furnished with particular instructions
to regulate their actions on this head on receipt of the pass.

XIV. Should any ship or vessel destined to a neutral port
take on board such goods which, if intended for any port be-
longing to the belligerent Powers, would be regarded as con-
traband of war, every such shipper and master shall then, in
addition to the oath they have respectively to make as owner
and captain, before the proper magistrate or other authorities
be compelled to make a special declaration, apart from the usual
required Customs' clearance, setting forth the description,
quantity and value of such goods, in conformity with the
invoices and bills of lading, which declaration, signed by the
shipper and master, shall be certified by the proper collector
or inspector of Customs at the places where the clearance is

Neutral Legislation as to Navigation during War 813

effected. Such attested declaration shall, after clearance of the
ship, be forwarded without delay by our Custom-House officers
to our West Indian Guinea Revenue and General Board of
Customs, to serve for the control of the goods therein mentioned
on due arrival at the proper port of destination, unless it can
be shown by authenticated proof that they were prevented by
cases of distress or violent detention. The control thereof shall
be conducted in the following manner : the shipper of such
goods shall procure a certificate from our Consul or Commercial
Agent at the place to which the ship is destined, or, if no Consul
or Commercial Agent, or their representative, reside there, then
of the proper functionaries or other persons appointed by public
authorities at the place, duly qualified to issue such certificate,
which certificate aforesaid shall legally certify the arrival of
such ship and discharge of such goods, in conformity with the
given declaration. This certificate must be procured, and for-
warded to our General Land Economy and Commercial College,
as soon as the vessel arrives at her port of destination, or has
returned to an inland harbour. Should such certificate not be
forthcoming within a proper time necessary for the completion
of the voyage, our General Land Economy and Commercial
College shall demand of the shipper a declaration, such as he
may conscientiously affirm on oath, that he has received no
intelligence of the ship and goods in question. Should no proof,
however, be obtainable of the arrival of the ship and the dis-
charge of the goods in question at a neutral port, or the preven-
tion thereof be shown to have been occasioned by accident or
forcible detention, the shipper shall pay to the Sea Pass Ex-
chequer of our General Land Economy and Commercial College
a fine of 20 Rbthlr. for every commerce last of the ship's burthen,
and in such cases of transgression the owners and captain shall
be liable to prosecution according to law.

XV. No captain shall sail to any port blockaded by sea by
any of the belligerent Powers, and he shall guide himself in
this respect carefully, according to the warnings made known
to him by the proper authorities respecting the blockade of any
ports. In case that on sailing into any port, of the blockade
of which he was before ignorant, he meet any ship, under a
man-of-war's flag, belonging to the belligerent Powers, and it
then be announced to him by the commander thereof that the
port is really under blockade, he shall without delay put back,
and in nowise seek to creep in by surreptitious means, so long
as such port shall be in state of blockade.

XVI. None or our subjects shall serve on board privateers,
much less fit out, or have any interest in fitting out of such

314 The Declaration of Paris

vessels ; neither shall any owner or master allow his ship to be
used for the transport of troops, weapons, or ammunition of
war, of what kind or nature soever. In case a master should
not be able to prevent his ship, by means of irresistible force,
being made use of for the aforesaid purpose, it shall be his duty,
fervently, and by a formal deed, to protest against such violent
treatment, which it was not in his power to prevent.

XVII. Should a merchant vessel, not sailing under an armed
protection, be boarded at sea by any ship belonging to the
belligerent Powers entitled to examine her ship's papers, the
captain shall make no resistance against such search, when
undertaken by the commanding officer of the aforesaid armed
ship ; but he shall, on the contrary, be bound to produce faith-
fully and without reserve all papers and documents relating to
ship and cargo. It is, moreover, most stringently prohibited for
the captain, his officers, or any of his crew to throw overboard
or any manner destroy or conceal any document or paper on
board belonging to the ship or cargo, be it either before or during
the search. When merchant vessels are allowed the armed
protection of our man-of-war flag, every master is compelled
to show his ship's papers to the superior officer of the convoy,
before he can be received under such convoy, and in all cases
implicitly to follow his orders.

XVIII. Should any master or owner dare to transgress or
otherwise to oppose this our Ordinance, he shall have forfeited
his citizenship, and his further right to fit out vessels, and also
be subjected to be prosecuted by law, and punished, according
to the circumstances, as perjurers, or as wilful transgressors of
our royal mandate. On the other hand we will, with parental
care, maintain and protect the interest of our beloved subjects'
lawful commerce and navigation, when they conduct themselves
obediently in accordance to the above rules and instructions ;
for which purpose we have instructed and commanded our
Ministers, Consuls, and other proper authorities abroad, to pre-
vent to the utmost of their power, any annoyance or molestation
to our subjects, and in case of such occurring, to protect the
sufferer, and endeavour to obtain justice for him and compensa-
tion for damages. We shall likewise, at all times, graciously
support every well-grounded claim that any of our subjects may
at any time humbly lay before us.

Given under our hand and seal, at our royal residence,
in the city of Copenhagen, the 4th May 1803.

Schimmelmann Schestedt. (L.S.) Christian R.

C. Winther.

Neutral Legislation as to Navigation during War 315

D.— HAITI.

DECLARATION OF THE EMPEROR OF HAITI, RELATIVE TO
THE NEUTRALITY OF HAITI IN THE WAR BETWEEN
THE ALLIED POWERS AND RUSSIA; THE NON-ADMIS-
SION OF PRIVATEERS INTO HAITIAN PORTS; THE NON-
VIOLATION OF BLOCKADES ; AND THE TRADE OF
NEUTRALS.— NOVEMBER 18, 1864.

Sa Majeste I'Empereur, voulant conserver la neutralite dans
la guerre qui se poursuit en Europe entre les Puissances alliees
et la Russie, a daigne arreter ce qui suit :

Les navires armes en course ne seront point admis dans les
ports et rades de I'Empire et en pourront par consequent s'y
procurer ni munitions ni instruments quelconques dont ils
pourraient avoir besoin.

Ne seront pas admis pareillement dans ces ports, les arma-
teurs avec leurs prises k moins d'un cas de peril evident.

II ne sera pas permis de leur acheter des objets qu'ils pour-
raient avoir a vendre quels qu'ils soient.

Defense est faite aux sujets de I'Empire de prendre du service
k bord des batiments des armateurs etrangers, et aux batiments
sous pavilion haitien de transporter pour aucune des Puissances
belligerantes, des objets de contrebande de guerre.

Les dits batiments pourront toutefois faire le transport du
commerce dans les ports et rades des Puissances belligerantes,
et prendre chargements, dans leur qualite de neutres, de mar-
chandises appartenant aux sujets des dites Puissances, excepte
la contrebande de guerre. Les batiments sous pavilion haitien
s'abstiendront d'entrer dans les ports qui seront bloques reelle-
ment et effectivement ; c'est-a-dire, lorsque ce blocus est
maintenu par des forces suffisantes et lorsqu'il y a declaration
formelle du commandant des forces navales.

Le Gouvernement de I'Empire se conforme aux principes
proclames par les Puissances belligerantes relativement au
commerce des neutres, a savoir : le pavilion couvre la marchan-
dise ; la propriete des neutres, meme sur les navires ennemis,
est inviolable (excepte, dans le Cas de contrebande de guerre
et de blocus effectif ) ; et enfin on declare que des lettres de
marque ne seront pas delivrees.

Le present avis est public pour que le commerce haitien s'y
conforme.

316 The Declaration of Paris

E.— HAMBURGH.

PROCLAMATION OF THE SENATE OF HAMBURGH, PRO-
HIBITING THE EXPORTATION OF ARTICLES CONTRA-
BAND OF WAR, AND THE VIOLATION OF BLOCKADES,
DURING HOSTILITIES BETWEEN CERTAIN EUROPEAN
POWERS.— HAMBURGH, APRIL 10, 1854.

During the present state of war between several of the

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